United States v. North , 86 F. App'x 427 ( 2004 )

Not for Publication is West's Federal Reporter
Citation is Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 01-1039
UNITED STATES,
Appellee,
v.
JEFFREY NORTH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jeffrey North on brief pro se.
Michael J. Sullivan, United States Attorney, Christopher F.
Bator, Assistant United States Attorney, and Elizabeth D. Collery,
Attorney, Appellate Section, on brief for appellee.
January 22, 2004
Per Curiam. Jeffrey North appeals his conviction and
forty-five year sentence for drug trafficking and weapons
violations. We affirm.
The indictment charged North with one count of
conspiracy to possess with intent to distribute large quantities
of marijuana, two counts of illegal possession of weapons, and one
count of illegal "use and carry" of weapons in relation to the
charged drug conspiracy. North's co-defendant, Regina Monaghan,
was jointly charged in the drug conspiracy and, in a separate
count, also charged with money laundering.
At the close of a seventeen-day joint jury trial,
Monaghan was acquitted. North was convicted of all the charges
against him. He was sentenced to a term of imprisonment of forty-
five years.
The evidence against North included the testimony of
three witnesses who each headed his own (separate) drug
distribution ring: Starita, Stevens and Petraglia. Petraglia
initially had assisted Stevens, becoming a separate supplier to
North when Stevens left town. Each supplier-witness testified
in detail that on multiple occasions he supplied to North very
large (wholesale) quantities of marijuana in exchange for North's
payment of large amounts of cash. During each transaction, North
re-wrapped the drugs that he purchased in a unique fashion in the
supplier's presence. Each supplier also testified that North
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carried, displayed and/or brandished various firearms during the
transactions. The suppliers' testimony was corroborated by other
witnesses who had played lesser roles in the deals, including
Adams (who assisted in transactions with both Stevens and
Petraglia), Rosa (who helped Stevens), and Butler (who was
North's driver and who witnessed, inter alia, North's purchase
of weapons and his resale of drugs).
North's connection to the weapons identified by the
suppliers also was corroborated by the testimony of one Regan.
Regan testified that he and other members of the "DeCologero
gang" had stolen firearms from North's apartment, including the
machine gun, silencer, UZI and ammunition charged to North in the
indictment. The robbers had stashed some of the stolen weapons
in the apartment of a young woman, Aislin Silva. A search of
Aislin Silva's apartment by the ATF in November 1996, revealed
the guns, which were duly seized. Others of North's weapons
apparently ended up in a marsh where they were found in February
1997.
North testified in his own defense, denying almost
every one of the government witnesses' incriminating allegations.
In turn, North accused his accusers of engaging in a perjurious
effort to frame him for their own drug dealing and falsely to
attribute to him control or possession of weapons that the
accusers had used in connection with their own drug activities.
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Other incriminating physical evidence found by the police among
North's possessions, North said, actually belonged to the
government witnesses. Still, North admitted that he was
acquainted with all of the drug-dealer witnesses (testifying that
he worked as a pet/house-sitter for Stevens); that he had
illegally purchased other drugs (steroids for personal use); and
that he had participated in at least one theft of money from one
of the drug suppliers.
North's testimonial protestations of innocence were
severely impeached on cross-examination by proof of his own
inconsistent out-of-court admissions in (1) tape-recorded
telephone calls that he made from state prison to government
witnesses, and (2) a statement that he made in a proffer session
after his arrest. In an effort to blunt the impeaching effect,
North asserted at trial that his taped telephonic comments did
not mean what they seemed to mean, and that the pretrial
statement he had proffered to the government was filled with
lies.
North was represented by counsel at trial. In mid-
trial, he moved for permission to proceed pro se. That motion
was denied. After the trial, he was permitted to represent
himself at sentencing, although the court also appointed standby
counsel for him.
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On appeal, North initially chose to proceed pro se. He
then changed his mind and moved for appointment of counsel. That
motion was granted. He then reversed field once again, and
insisted upon appearing pro se. He persisted in that position
notwithstanding this court's stern warning about the difficulties
he likely would face if he chose to proceed without counsel on
appeal. We ultimately granted his renewed motion to appear pro
se.
North's brief presents ten labeled points. Each point
includes a number of sub-points. Almost all of the issues are
vaguely or imprecisely framed. In light of his pro se status, we
interpret his arguments liberally, gleaning, by subject, the
following sets of issues.
I. THE CONSPIRACY CHARGE
North argues that there were a number of variances
between the evidence adduced at trial and the conspiracy charged
in Count Three of the superseding indictment. As a result, he
urges that there was insufficient evidence to support his
conviction on Counts Three and Four. Count Three charges:
From in or about March, 1996 to in or about
February, 1999, at Stoneham, Tewksbury,
Melrose and elsewhere in the District of
Massachusetts, and elsewhere . . . . Jeffrey
North and Regina Monaghan. . . . defendants
herein, did knowingly and intentionally
combine, conspire, confederate and agree with
each other, and with other persons known and
unknown to the Grand Jury, to possess with
intent to distribute marijuana. . . . in
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violation of Title 21, United States Code,
Section 841(a)(1) . . . . [and] Section 846.
Count Four is dependent on Count Three. Count Four
charges that North "used" and "carried" specifically identified
weapons "during and in relation to the drug trafficking crime
alleged in Count Three . . ."
A. "Single" vs. "Multiple" Conspiracies
Below, all parties agreed that Count Three charged a
"single" conspiracy. The defense objected that the government's
evidence varied from the charge by instead indicating at least two
separate conspiracies between North and his competing supply
sources: one conspiracy between North and the distribution ring
of Stevens/Adams/Rosa (and possibly Petraglia), and the other
conspiracy exclusively between North and Starita.1 There was no
interdependence among the competing sources, nor proof even of an
awareness of the other suppliers by Starita, according to the
defense. In opposition, the government contended that the
1
The defense also argued, and North echos here, that the one
and only conspiracy properly noticed was the
Stevens/Adams/Rosa/Petraglia conspiracy since Starita's testimony
had been insufficiently noticed. As framed, the argument
implicates both Count Three and Count Four (as the proof that North
had "used and carried" some of the weapons identified in Count Four
had come largely from Starita's testimony about guns brandished
during the Starita/North transactions). This argument is belied by
the record. While Starita's name initially was omitted from a bill
of particulars that named the other conspirators, notice of
Starita's testimony was given approximately two and one-half weeks
before the start of trial. The timing and manner of the notice was
not shown to have caused any separate prejudice to the defense.
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evidence proved that North was the "hub" of a single conspiracy
to acquire marijuana from multiple sources of supply. These
sources necessarily substituted for or supplemented one another
from North's point of view.
The court correctly submitted this issue to the jury. The
court charged -- as to each defendant -- that the jury should
determine whether the evidence showed one "overall" conspiracy or
separate conspiracies, and "if you believe the evidence shows that
either defendant was a member of a conspiracy different from the
one charged in the indictment, then you must find him or her not
guilty. . . "
As raised on appeal, North's attack poses three sub-
questions:
(1) Is the evidence sufficient to permit a
jury to find the (express or tacit) agreement
that the indictment charges? (2) If not, is
it sufficient to permit a jury, under a
proper set of instructions, to convict the
defendant of a related, similar conspiracy?
(3) If so, does the variance affect the
defendants substantial rights or does the
difference between the charged conspiracy and
the conspiracy proved amount to "harmless
error?"
United States v. Glenn, 828 F.2d 855, 857-58 (1st Cir. 1987); see
also United States v. Sutherland, 929 F.2d 765, 772 (1st Cir.
1991).
(1) Sufficiency of the evidence. We review the
sufficiency of the evidence to prove the charged "single"
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conspiracy in the light most favorable to the verdict. United
States v. Wihbey, 75 F.3d 761, 774 (1st Cir. 1996). Courts
usually look for proof of factors such as (1) a "common goal," (2)
interdependence among the participants, and (3) overlap among
participants. United States v. Portela, 167 F.3d 687, 694 (1st
Cir. 1999); cf. United States v. Shea, 211 F.3d 658, 665 (1st Cir.
2000) (observing that "no magic formula exists for determining
when a set of jointly committed crimes adds up to an overarching
conspiracy or enterprise," but courts "tend to look" for the
listed factors).
The evidence is overwhelmingly sufficient to prove, as
the prosecution urged, that North was the hub of an enterprise
that obtained drugs from multiple drug supplier-spokes. All
participants thus had as a "common goal" an interest in selling
marijuana for a profit. See Portela, 167 F.3d at 694 (reasoning
"that each defendant had an interest in furthering the
distribution of [drugs] is also sufficient evidence that they
shared a common goal with the other participants"). Proof of
North's own "pervasive involvement" as the "single core
conspirator" also sufficed to show an "overlap" among the
participants. Id. at 695. There also was ample proof to imply
an "interdependence" among the participants.
(2) Similar Conspiracies. Even if the evidence is
viewed as proving more than one conspiracy, each of them would fit
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within the indictment's charge -- and each was sufficiently
proven.
There was overwhelming proof of a pattern of large
quantity sales between North and each of his supply sources,
sufficient to permit a jury to find an implicit, if not explicit,
agreement that each supplier would be a continuing source of
supply for North's resale efforts. See United States v. Moran,
984 F.2d 1299, 1303 (1st Cir. 1993) (explaining that a continuing
course of dealing between buyer and seller suggests the shared
purpose, knowledge and interdependence necessary to prove a
conspiracy between them). And, viewing each source as a
participant in a separate conspiracy, each conspiracy would fit
within the description in the indictment: that from March 1996 to
February 1999, North conspired with persons "known and unknown"
to "possess with intent to distribute marijuana."
(3) Substantial Rights. In all events, the alleged
variance through proof of more than one conspiracy did not affect
North's substantial rights. We review this issue de novo, see
Wihbey, 75 F.3d at 774, and discern no prejudice from the
purported variance.
The defense had notice of the government's case
sufficient to avoid any surprise at trial. There was no danger
of a prejudicial spillover effect since the evidence was
sufficient to prove a conspiracy between North and each of the
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suppliers. There is no reason to suspect any ensuing confusion
about the scope of the judgment, which runs solely against North.
As to Count Four, since each of North's allegedly
separate agreements within the confines of the Count Three charge,
there also was no lack of proof that North "used and carried" each
of the weapons identified in Count Four "during and in relation
to the drug trafficking crime alleged in Count Three."
B. Vagueness of the Indictment
North argues for the first time on appeal that the Count
Three conspiracy charge is impermissibly vague. He suggests that
an overall lack of specificity, as well as some specific
omissions,2 may have prejudiced him by giving insufficient notice
"of what he must be prepared to meet," and allowing the
prosecution to "guess" at the facts upon which the grand jury had
relied. As a result, he urges, he was deprived of his right to
be tried only on charges presented to the grand jury.
North does not point to any actual prejudice, but draws
upon general principles culled from a number of factually
distinguishable cases, including Russell v. United States, 369
U.S. 749, 763-70 (1962). However, the facts of each case and the
2
North essentially backs into this point, arguing that the
charge is impermissibly vague unless it is construed to charge a
conspiracy solely between North and Monaghan. Construing the
indictment as written, to include a conspiracy with unnamed others
and without specification of an overt act, he argues, renders it
too uncertain.
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particular crime charged necessarily inform any evaluation of the
fairness of notice of the conduct charged by the grand jury.
Tomasetta, 429 F.2d 978, 979 (1st Cir. 1970). The test is "not
whether in hindsight the indictment or information could have been
more complete. . . but rather whether it fairly identifies and
describes the offense." United States v. Allard, 864 F.2d 248,
250 (1st Cir. 1989).
A perfect alignment between the indictment's charge and
the offense conduct of conviction is not required. Where the
defendant is convicted of narrower conduct than that charged in
the indictment, there is no violation of the Fifth Amendment as
long as the trial proof corresponds to an offense which was
clearly set out in the indictment. United States v. Miller, 471
U.S. 130, 136 (1985).
Here, the indictment clearly charged that North
conspired with Monaghan and "known and unknown" other persons to
possess and distribute large quantities of marijuana in and around
identified cities and towns in Massachusetts during a specified
two-year period. The trial proof conformed to the indictment by
showing that North in fact conspired with a number of persons to
buy and sell large quantities of marijuana on many occasions in
the relevant time period, in and around the named places. The
offense proved, as in Miller, was thus fully contained in the
indictment, and no additional crime was added. Id. at 137-38,
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143. And North has not shown that the indictment's wording (as
supplemented in the bill of particulars and in pretrial
discovery), in any way prejudiced his ability either to defend
himself at trial or to use the judgment as a bar to subsequent
prosecutions. Id. at 138 n.5.
At any rate, any possible vagueness argument was waived
by the failure to object on that ground at trial. See United
States v. Cotton, 535 U.S. 625, 631 (2002) (holding that,
generally, defects in an indictment may be waived). Accordingly,
we apply a plain error standard of review. Id.That ends the matter. Even if there were an error --
and we see none -- there is no reason to believe that it had any
effect on North's substantial rights since he had ample actual
notice of the government's case against him. There is also no
reason to doubt the fairness, integrity, or public reputation of
the proceedings. Here, as in Cotton, "the real threat to the
fairness, integrity, and public reputation of the judicial
proceedings would be if . . . despite the overwhelming and
uncontroverted evidence that [defendant] was involved in a vast
drug conspiracy," his conviction was reversed due to a non-
prejudicial miswording of the indictment. Id. at 634.
Names of Co-conspirators. North also argues for the
first time on appeal that the indictment is insufficient because
it did not identify by name any co-conspirators other than
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Monaghan. But there is no requirement that an indictment specify
the names of co-conspirators. The only relevant question is
whether, without the names, the defendant had sufficient notice
of the charged offense to prepare a defense and to know whether
there was reason to plead a former acquittal or conviction.
United States v. Indorato, 628 F.2d 711, 717 (1st Cir. 1980).
North was given sufficient pretrial notice of the names
and testimony of alleged co-conspirators to enable him to prepare
a defense. There was and is no legitimate double jeopardy issue.
Consequently, there was no prejudice -- and no plain error.
Overt act. North argues for the first time on appeal that
the conspiracy count is insufficient because it fails to specify
an overt act. Under 21 U.S.C. § 846, the federal crime of drug
conspiracy is complete upon the making of an agreement. See
United States v. Shabani, 513 U.S. 10, 15-16 (1994). The
conspiratorial agreement itself is the "actus reus," so the
government is "not required to plead or prove any overt act in
furtherance of a section 846 conspiracy." United States v. Vega-
Figueroa, 234 F.3d 744, 753 (1st Cir. 2000) (quoting United States
v. Bello-Perez 977 F.2d 664, 669 (1st Cir. 1992)); cf. United
States v. Nelson-Rodriguez, 319 F.3d 12, 28 (1st Cir. 2003)
(noting that an agreement may be proved by circumstantial
evidence). Thus, no plain error attended this omission.
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C. Monaghan's Acquittal
Although North disclaims any argument for acquittal
based on inconsistent verdicts, he argues that since Monaghan was
acquitted of the conspiracy charge, he too must be acquitted. He
offers several theories to bridge this gap.
First, North argues that Monaghan's acquittal requires
that all references to her must be read out of the indictment,
thus allegedly rendering the indictment insufficient for lack of
specificity. As the government sensibly rejoins, the sufficiency
of an indictment is not determined by hindsight but by whether it
gave fair notice at the outset, stated all the elements of the
offense, and enabled a plea of double jeopardy. As discussed
above, the indictment passed this test.
Second, North argues that Monaghan's acquittal
logically means that there was insufficient proof against him of
the one conspiracy concretely noticed in the indictment, i.e., a
North/Monaghan conspiracy. This tautology, too, must be rejected.
In United States v. Bucuvalas, 909 F.2d 593 (1st Cir. 1990), we
rejected a nearly identical argument, holding that the acquittal
of the only other named co-conspirator did not mean that there
existed no conspiracy between the two but might instead mean,
among other possibilities, that the jury was disposed to lenity
toward the other co-conspirator. Id. at 595. Lenity seems to be
an especially plausible explanation for Monaghan's acquittal,
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since the government's proof against Monaghan suggested that, by
comparison to North, she played a very limited role.
The bottom line is that, despite North's creative
interpretation of the indictment, it expressly charged a
conspiracy that implicated other persons. Thus, even if we were
to apply a rule requiring consistency, (i.e., requiring reversal
of a conspirator's conviction when all other alleged co-
conspirators have been acquitted), there is no perceived
inconsistency "where the convicted defendant was alleged and shown
to have conspired with one or more persons who were unapprehended,
dead, or simply unknown, . . . [or where] any [other]
coconspirator's case was disposed of other than on the merits."
Id. at 595 n.3. North's conviction obviously fits into the latter
category, so there was no inconsistency here.
In a third variation on this theme, North argues that
the court's charge to the jury that each defendant's participation
in the conspiracy should be separately determined amounted to a
constructive amendment. In light of what we already have said,
the instruction was correct. Upon de novo review of the jury
instruction, we find that it was faithful to the indictment's
charge and there was no constructive amendment.
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II. Alleged Evidentiary Errors
North also assigns as error the unobjected-to admission
into evidence of several pieces of evidence. We assess each claim
of error separately.
A. The Murder of Aislin Silva.
Upon our own review, there was neither plain error nor
prejudice to North in the admission into evidence of the
scattered, oblique references to Silva's murder in lengthy tape
recordings and in a few exhibits. Indeed, the defense took
advantage of the fact of the murder as a means of disparaging the
credibility of at least one unfriendly witness, Regan, and any
possibility of prejudice to North was dispelled by Regan's
testimony on cross-examination that North was not involved in the
murder.
B. Alleged Perjury.
North asserts that the prosecution presented perjured
testimony in violation of his right to due process when it
permitted Starita to testify that he first met North in 1996.
Impliedly, North urges that the admission of the alleged perjury
was "plain error." He asserts that Starita's perjury is
demonstrated by record evidence of an inconsistency between
Starita's grand jury and trial testimony and by inconsistencies
between Starita's trial testimony and facts recorded in a hearsay
statement that was excluded from evidence. Upon our own review,
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we apprehend no proof in the record of any perjury, merely some
attenuated or arguable inconsistencies among witnesses, and no
error at all in the admission of Starita's testimony about the
date.
C. Allegedly Coerced Confession.
North impliedly urges plain error in the failure of the
court to exclude his confession from evidence and/or to order a
hearing into its voluntariness. North admitted on direct
examination that he had made an inculpatory statement to
government investigators during a pretrial proffer session, but
he said that the statement was a lie. On cross-examination, he
asserted that the statement had been elicited from him by the
investigators through threats and the "torture" of his family
members.
Upon our own review of the record, we see no meaningful
indicia of coercion. North's conclusory accusations instead seem
to be refuted by the circumstances surrounding the proffer
session.3 Accordingly, there was no plain error in the court's
failure sua sponte to either notice this as an issue or to order
a hearing on the voluntariness of the statement. See generally
3
A government investigator testified that the proffer session
was arranged to accommodate North's spontaneous request for the
session. North was apparently represented by counsel at the time
(or, at least, was given the opportunity to have counsel present.
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United States v. Santiago Soto, 871 F.2d 200, 201-03 (1st Cir.
1989).
III. INEFFECTIVE ASSISTANCE CLAIMS
North has raised a number of claims of ineffective
assistance by trial counsel. We decline to address them on direct
appeal.
"Although we have occasionally reviewed ineffective
assistance claims on direct appeal, 'we travel this route only
when the critical facts are not in dispute and the record is
sufficiently developed to allow reasoned consideration of the
claim." United States v. Benjamin, 252 F.3d 1, 12 (1st Cir. 2001)
(quoting United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.
1993)). As we observed in Mala, "[w]e have held with a regularity
bordering on the monotonous that fact-specific claims of
ineffective assistance cannot make their debut on direct review
of criminal convictions, but, rather, must originally be presented
to, and acted upon by, the trial court." Mala, 7 F.3d at 1063.
North's fact-sensitive claims of ineffective assistance were not
presented to the trial court for initial consideration as
contemplated by 28 U.S.C. § 2255, and the record is insufficiently
developed to permit reasoned appellate consideration under
ordinary standards of appellate review. That ends the matter.
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IV. DENIAL OF REQUEST TO PROCEED PRO SE
We see no error in the denial of North's mid-trial
request to proceed pro se. On the eleventh day of the trial,
North requested that his trial counsel's representation be
permitted to continue only until the close of the prosecution's
case so that, thereafter, North could present his case in defense
pro se. He explained that he wished to call and recall witnesses
in order to pose questions and present theories with which his
counsel disagreed.
The court held a hearing on the request and engaged
North in a lengthy colloquy anent the evidence and theories that
he wished to present. The court also heard from North's counsel,
counsel for co-defendant Monaghan, and the government. The court
then rejected North's request.
The controlling legal principles are clear:
A district court has considerable
discretion to grant or deny a
request for self-representation
that is not presented until trial
is underway. . . But that
discretion is not unbridled. It is
improper for the court to deny the
defendant the right to serve as his
own attorney solely because of a
perceived lack of legal dexterity.
. . Rather, in the last analysis
the court must balance the
legitimate interests of the
defendant in self-representation
against the potential disruption of
the proceedings already in
progress.
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United States v. Noah, 130 F.3d 490, 498 (1st Cir. 1997)
(citations and internal quotation marks omitted); cf. Faretta v.
California, 422 U.S. 806, 834-36 (1975) (observing that a
defendant has an absolute right to self-representation when the
right is asserted in a timely manner prior to trial).
The trial judge's decision rejecting North's request
expressly balanced a myriad of relevant factors including the
complexity of the trial, the numerous delays and conferences that
had already occurred, the likely further disruption that might be
caused by granting the request, and the likely prejudice to the
other parties. The court supportably found that the evidence that
North wished to present on his own was remote, collateral and
probably prejudicial to his own cause,4 whereas his defense
lawyers "are highly experienced and skilled, [and] have obviously
devoted a great deal of time and effort" to the case. In these
circumstances, the court concluded that permitting North to change
course in order to represent himself mid-trial would cause an
intolerable disruption of the orderly process of the trial -- a
disruption that outweighed any legitimate interest he might have
in self-representation. For the same reason, the court also
properly refused a narrower request to permit North to make his
own closing argument.
4
Because this determination was unexceptionable, we also
reject North's argument that he was deprived of his constitutional
right to call witnesses in his own defense.
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These rulings pass muster. As we said in similar
circumstances:
The reasonableness of this
conclusion is scarcely open to
question. District Courts have an
institutional interest in avoiding
the disruption of trial
proceedings. To permit a defendant
to switch roles near the halfway
point of a complicated criminal
trial runs an obvious risk of
dislocating both the court's docket
and the orderly progression on the
trial. . . [and] . . . would have
tended to prejudice the
prosecution.
Noah, 130 F.3d at 498.
V. SENTENCING
North argues that the court erred in several ways in
computing his sentence for Counts One through Three (but he does
not challenge his mandatory 30-year consecutive sentence on Count
Four for use of a firearm during a drug trafficking crime). North
was sentenced to a total of 180 months on these three counts, as
follows:
(1) Concurrent terms of 120 months (the statutory
maximum on each count) for the "groupable" weapons possession
offenses in Counts One and Two.
(2) A consecutive term of 60 months for the drug
conspiracy count (Count Three).5
5
Although Count Three might have carried a higher sentence
since more than 1000 kilograms had been noticed in the indictment
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North asserts that two types of errors occurred. First,
he accuses the court of computational mistakes under USSG §
5G1.2. These are figments of his imagination. The district
court simply did not mis-compute the "total punishment" for the
three counts in the ways that North claims. Rather, the court
correctly computed North's adjusted combined offense level (34),
and from that, in conjunction with North's criminal history
category, correctly determined the guideline sentencing range
(188-235).
Nor did the court err in its refusal to run all three
sentences concurrently. Instead, having determined that the
sentencing range was 188-235 months, and that none of the counts
of conviction had a statutory maximum greater or equal to the
total punishment, the court correctly followed the guidelines.
"The Guidelines mandate the imposition of consecutive sentences
in order to achieve (as close as possible) the 'total punishment.'
" United States v. Garcia-Torres, 341 F.3d 61, 75 (1st Cir.
2003); see also USSG § 5G1.2(d).
North's other argument is that the court violated the
rule in Apprendi by imposing a sentence in excess of 60 months.
and more than 1600 kilograms had been proven at trial, see 21
U.S.C. § 841(b)(1)(A)), the drug quantity issue had not been
submitted to the jury. At sentencing, the government agreed that
in light of the intervening decision in Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), North should receive only the default
statutory maximum (60 months) on this count. This concession seems
extremely generous, but the Apprendi issue is not before us.
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The argument is hard to follow but seems to include an attack on
the court's reliance upon the 1600+ kilos shown in evidence at
trial to compute his base offense level. But Apprendi does not
preclude a sentencing court from considering a fact that has not
been submitted to the jury for purposes authorized by the
sentencing guidelines -- so long as the sentence imposed does not
exceed the applicable statutory maximum. See United States v.
Caba, 241 F.3d 98, 100 (1st Cir. 2001). Moreover, Apprendi is
not violated by the imposition of consecutive sentences to the
extent necessary to achieve the prescribed total punishment under
§ 5G1.2 -- so long as the defendant does not receive greater than
the statutorily prescribed maximum sentence on any particular
count. United States v. Feola, 275 F.3d 216, 219 (2d Cir. 2001).
"[T]he aggregate sentence is imposed because appellant has
committed two offenses, not because a statutory maximum for any
one offense has been exceeded." Id. at 220.
North makes other arguments that are hopelessly garbled,
redundant, obviously unavailing, or otherwise not deserving of
discussion. We reject them all.
For these reasons, the conviction and sentence are
affirmed.
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