United States v. Jackson ( 1993 )


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  • 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.
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    _____________________

    Norman E. V. D'Andrea, by Appointment of the Court, for
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    appellant.
    Kenneth P. Madden, Assistant United States Attorney, with
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    whom Lincoln C. Almond, United States Attorney, was on brief for
    _________________
    appellee.



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    August 31, 1993
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    ____________________

    * Of the Second Circuit, sitting by designation.














    TORRUELLA, Circuit Judge. On December 4, 1991, a
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    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,
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    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

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    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,

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    grams of cocaine actually seized. Thus, the BOL derived from a

    total quantity of 408.82 grams of cocaine. See U.S.S.G.
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    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
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    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
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    Mitigating Role. Guideline 3B1.2 allows for a
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    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.
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    1992), cert. denied, 113 S. Ct. 1005 (1993). Since role-in-the-
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    1991. Therefore, $3866 converts to 3.866 ounces of cocaine,
    which is equivalent to 109.6 grams.

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    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
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    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)
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    (citing Ruiz, 905 F.2d at 507; United States v. Mocciola, 891
    ____ _____________ ________

    F.2d 13, 17 (1st Cir. 1989)).


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    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.
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    1992); United States v. Pineda, 981 F.2d 569, 572 (1st Cir.
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    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.");


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    see, e.g.,United States v. Garc a,954 F.2d 12, 15(1st Cir. 1992).
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    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.
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    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


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    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
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    $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.
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    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,
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    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
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    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
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    States v. Walton, 908 F.2d 1289, 1301 (6th Cir.) (internal
    ______ ______

    quotation omitted), cert. denied, 111 S. Ct. 273 (1990)).
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    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).

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    United State v. Gerante, 891 F.2d 364, 368 (1st Cir. 1989);
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    Sklar, 920 F.2d at 114; see also United States v. Duarte, 950
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    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).
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    In United States v. Gerante, the defendant was arrested
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    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
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    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)
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    (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
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    cocaine and $112,867 cash); but cf. United States v. Gonz lez-
    _______ ______________ _________


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    S nchez, 953 F.2d 1184, 1186-87 (9th Cir. 1992) (approving
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    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


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    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


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    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.
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