United States v. Jones , 523 F.3d 31 ( 2008 )

United States Court of Appeals
For the First Circuit
No. 06-2472
UNITED STATES OF AMERICA,
Appellee,
v.
RASHAUN JONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Susan E. Taylor, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
April 11, 2008
TORRUELLA, Circuit Judge. On June 23, 2006, a jury found
Rashaun "Smoke" Jones guilty of conspiracy to distribute and
possess with intent to distribute heroin and cocaine base. Before
trial the district court, on recommendation of the magistrate
judge, denied Jones's motion to suppress certain evidence seized
from his hotel suite. Jones claims error in this denial. On
October 6, 2006, the sentencing court sentenced Jones to 188
months' imprisonment. Jones argues that the sentencing court erred
in calculating the drug quantity that went into his Guidelines
sentence calculation, and in finding him eligible for a two-level
upward adjustment to his base offense level for his role as an
organizer or manager of other criminal actors. Upon thorough
examination of the record and the parties' arguments, we affirm
Jones's conviction and sentence.
I. Background1
On December 29, 2005, Sgt. John O'Malley of the
Scarborough, Maine, Police Department learned from the manager of
the TownePlace Suites hotel that an individual named Rashaun Jones
had checked into Room 318; Room 318 was a suite with two bedrooms,
a living room, a kitchenette, and a bathroom. After running a
1
"We recite the facts relating to [Jones's] motion to suppress as
found by the district court, consistent with record support."
United States v. Brown, 510 F.3d 57, 61 n.1 (1st Cir. 2007); see
also United States v. Jones, No. 05-84-P-S, 2006 WL 763124 (D. Me.
Mar. 24, 2006) (magistrate judge's recommended factual findings);
United States v. Jones, No. 05-84-P-S, 2006 WL 1071893 (D. Me.
Apr. 21, 2006) (adopting magistrate judge's recommendation).
-2-
database check on Jones, Sgt. O'Malley discovered that there was a
warrant out for his arrest on drug charges, and that the U.S.
Marshals Service ("USMS") was responsible for the warrant. The
database indicated that Jones should be considered armed and
dangerous.
Sgt. O'Malley contacted the USMS, which informed him that
an arrest team would be assembled. O'Malley also contacted Drug
Enforcement Administration ("DEA") task-force agents Steven
Thibodeau and Paul Wolf. Agent Wolf had been part of the
investigation that led to Jones's arrest warrant, and he asked Sgt.
O'Malley to meet him at the hotel. Wolf and O'Malley obtained
passkeys to Rooms 317 and 318. Sgt. O'Malley positioned himself in
Room 317, while Wolf waited in his car in a nearby parking lot for
the team of U.S. Marshals and DEA agents to arrive. Sgt. O'Malley
had a view of Room 318's door through the peephole in the door of
Room 317.
At a certain point, Sgt. O'Malley observed a man and a
woman leave Room 318 and drive away in a car. Sgt. O'Malley
radioed Agent Wolf, who followed the car and observed it circle
around a parking lot, without stopping, before returning to the
hotel. Sgt. O'Malley saw the man emerge from the car and reenter
Room 318; shortly thereafter, he heard an exuberant male voice
through the wall, counting from one to eight. Agent Wolf and Sgt.
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O'Malley concluded that a drug transaction had likely taken place
during the short car ride.
Agent Wolf then joined Sgt. O'Malley in Room 317. Sgt.
O'Malley again observed a man and woman exit the room and drive
away in a car. Officers stopped the car in a nearby parking lot
and questioned its occupants. The man said he had been sent on a
short trip to the supermarket to buy cigarettes; he admitted that
Jones was indeed one of the persons in Room 318, and that Jones and
the other occupants were waiting for him to return. The man's cell
phone began to ring and rang every few minutes thereafter; the
officers did not allow the man to answer the cell phone.
In the meantime, several officers had assembled in a
parking lot adjacent to the hotel. This group of officers
included, among others, task-force agents Gregory Boucher, Stephen
Welsh, and Greg Bunch, and Chief Deputy U.S. Marshal John Cooper.
Concerned that the man's failure to answer his cell phone or return
to the hotel promptly would raise Jones's suspicions, Agent Wolf
and Marshal Cooper decided to enter Room 318. Using the passkey
provided by the hotel manager, a six-member team opened Room 318's
door without knocking, entered with weapons drawn, and shouted,
"Police!" A number of additional officers followed closely behind.
The officers found four men inside and handcuffed them.
Several of the officers also saw marijuana in plain view on a
living room table, and smelled marijuana smoke in the air. Agent
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Welsh detained and handcuffed a man sitting on the living room
couch who identified himself as Jones. Jones was then placed into
one of the bedrooms with Agents Boucher and Bunch. Boucher read
Jones his Miranda rights from a standard DEA "rights card," pausing
periodically to ask Jones if he understood. Jones responded in the
affirmative. Jones did not appear nervous or intoxicated. Agent
Boucher asked Jones if the officers could search the suite, but did
not tell him he had the right to refuse consent; Jones responded
that they could perform the search.
During this period, Marshal Cooper took one of the other
individuals from the bathroom, where he had been temporarily
detained on the floor, to the kitchenette. Marshal Cooper
testified that, before placing the detainee in the kitchenette, he
conducted what he termed a "security sweep" to make sure there were
no weapons within the detainee's reach. While looking inside a
kitchen cabinet, Marshal Cooper discovered a rice box without a
lid. He looked inside and saw what appeared to be packages
containing drugs of some kind. Marshal Cooper also saw pills in a
baggie on a shelf in the cabinet, but did not seize these or the
drugs in the rice box. Marshal Cooper then decided it would not be
a good idea to leave the detainee there, and instead seated him on
the closed toilet lid in the bathroom. Sometime later, Agent
Welsh, who had left Room 318 briefly and taken one of the other
detainees into Room 317 for questioning, returned to Room 318 and
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conducted a search of the kitchenette. Agent Welsh found and
seized the rice box and the baggie; the baggie contained ecstacy
and the rice box contained heroin.
A grand jury indicted Jones on one count of conspiracy to
distribute and possess with intent to distribute one kilogram or
more of a mixture or substance containing heroin, and a mixture or
substance containing cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Jones moved to suppress the fruits of the
search of Room 318, claiming it was illegal because the officers
entered the room without knocking and announcing their presence,
because any consent to search given by him was not knowing and
voluntary, and because Marshal Cooper's search of the kitchen
cabinet was not incident to a lawful arrest or part of a protective
sweep. After a hearing at which several of the officers testified,
the magistrate judge issued a recommendation that the motion to
suppress be denied. He reasoned that (1) exigent circumstances
justified the no-knock entry into Room 318; (2) Jones freely and
voluntarily consented to the search of Room 318; and (3) Marshal
Cooper's discovery of the heroin and ecstacy occurred after Jones
had given his consent, and was lawful in any event as part of a
protective sweep. Over Jones's objection, the district court
adopted the recommendation. Jones again objected at trial when the
items seized from Room 318 were introduced into evidence.
-6-
At trial, the Government called a number of witnesses.
According to the testimony presented, Jones would acquire heroin,
cocaine, and cocaine base (a.k.a. "crack") from a supplier in New
York. Evidence was also presented showing that Jones coordinated
the distribution of these drugs to consumers in southern Maine
through a number of sellers, including most importantly Nick Foster
and John Thomas. On June 23, 2006, the jury convicted Jones as
charged in the indictment.
In the Presentence Report ("PSR"), the probation officer
calculated Jones's Guidelines Sentencing Range ("GSR") to be 188 to
235 months. The PSR took into account the quantum of different
drugs seized during the search of Room 318 and from Jones's
coconspirators and customers, and that which coconspirators
admitted to having distributed on behalf of the conspiracy.
Ultimately, the PSR attributed to Jones 3,658 grams of heroin, 25.8
grams of crack cocaine, and 0.8 grams of powder cocaine, for a
total of 4,174.16 kilograms of marijuana equivalent. This put
Jones's base offense level at thirty-four. See U.S.S.G. § 2D1.1
(c)(3). The PSR also determined that Jones had supervised two of
the coconspirators -- Foster and Thomas -- and accordingly
recommended a two-level upward adjustment. See id. § 3B1.1(c).
Over Jones's objection, the sentencing court adopted the PSR's
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recommendations.2 After explaining its reasoning, the court
sentenced Jones at the bottom of the applicable Guidelines range to
188 months' imprisonment. Jones appealed.
II. Discussion
A. The Motion to Suppress
Jones argues that the district court should have
suppressed the fruits of the search of Room 318, raising the same
three challenges he raised before the magistrate judge. After
noting the standard of review, we address these challenges in turn.
1. Standard of Review
When considering challenges to a district court's denial
of a motion to suppress, we ordinarily review findings of fact for
clear error and conclusions of law de novo. United States v.
Meada, 408 F.3d 14, 20 (1st Cir. 2005). Under clear error review,
"we may reverse only if the record, read as a whole, gives rise to
a 'strong, unyielding belief that a mistake has been made.'" C.G.
ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 285 (1st
Cir. 2008) (quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083,
1087 (1st Cir. 1993)).
2. The No-Knock Entry
Renters of hotel rooms generally benefit from the same
Fourth Amendment right to be free from unreasonable searches and
2
The sentencing judge was not the same as the judge presiding
over pretrial and trial proceedings.
-8-
seizures as they would if they were at home. See United States v.
Rengifo, 858 F.2d 800, 805 (1st Cir. 1988) (citing Stoner v.
California, 376 U.S. 483, 486-87 (1964)).3 While police acting
pursuant to a warrant must ordinarily knock and announce their
presence before entering a dwelling to which Fourth Amendment
protections apply, see United States v. Hawkins, 139 F.3d 29, 32
(1st Cir. 1998), a "no-knock" entry will be deemed reasonable if
the police "have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances,
would be dangerous or futile, or that it would inhibit the
effective investigation of the crime by, for example, allowing the
destruction of evidence." United States v. Boulanger, 444 F.3d 76,
81 (1st Cir. 2006) (quoting Richards v. Wisconsin, 520 U.S. 385,
394 (1997)).
Importantly, however, the Supreme Court has recently
clarified that even if the police violate the Fourth Amendment by
failing to knock and announce their presence in circumstances in
which a no-knock entry is unwarranted, such violation, standing
alone, will not compel the exclusion of evidence seized as a result
of their entry into the dwelling. See Hudson v. Michigan, 547 U.S.
3We assume, as did the district court, that Jones was entitled to
the protections of the Fourth Amendment while in Room 318. He had
rented the suite, in his name, for a three-week stay. Moreover,
the mere fact that the hotel manager gave the officers a keycard to
enter Room 318, thereby manifesting her consent for officers to
enter the suite, did not divest Jones of his reasonable expectation
of privacy. See Stoner, 376 U.S. at 490.
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586, 594 (2006). In the wake of Hudson, we have recognized the
absence of an exclusionary rule for knock-and-announce violations,
provided the police have a valid arrest warrant or some other valid
grant of authority to enter the target's residence, and reason to
believe the target is inside. See United States v. Pelletier, 469
F.3d 194, 199 (1st Cir. 2006) (also noting that, "[g]enerally
speaking, this principle extends to the target's hotel or motel
room").
The district court's decision denying Jones's motion to
suppress, which predates both Hudson and Pelletier, addresses the
merits of Jones's challenge to the no-knock entry, ultimately
finding the entry justified because of the risk to the officers'
safety and that drug evidence might be destroyed. In light of
Hudson and Pelletier, we need not go so far. The remedy Jones
seeks is the suppression of the fruits of the search of Room 318.
He does not challenge the validity of the arrest warrant against
him, nor the officers' professed belief that he was in Room 318 at
the time. In any event, we find that such belief was objectively
reasonable based on the following evidence credited by the district
court: the hotel manager told officers that Jones had rented Room
318 for a three-week period, and the man detained in the parking
lot told officers that Jones was then inside the suite. The arrest
warrant and the reasonable belief Jones was inside Room 318 gave
the officers the authority to enter. See id. (citing Payton v. New
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York, 445 U.S. 573, 603 (1980)). Even if they violated the Fourth
Amendment by failing to knock and announce their presence before
going in, the motion to suppress was not the appropriate vehicle
for Jones to obtain the remedy he seeks. See Hudson, 547 U.S. at
597-99 (suggesting other avenues of relief). We thus proceed to
Jones's next assignment of error.
3. The Validity and Scope of Jones's Consent
It is axiomatic that officers must ordinarily procure a
warrant before searching a locale to which Fourth Amendment
protections apply. See Groh v. Ramírez, 540 U.S. 551, 558-59
(2004). Several exceptions to this requirement exist, however, one
of which is valid consent to search by someone having authority to
give consent. See United States v. Pérez-Montañez, 202 F.3d 434,
438 (1st Cir. 2000). In order for consent to be valid, the
Government must prove by a preponderance of the evidence that the
consenting party gave it freely and voluntarily. United States v.
Marshall, 348 F.3d 281, 285-86 (1st Cir. 2003). The assessment of
whether consent is free and voluntary is a question of fact that
requires an examination of the totality of the circumstances
surrounding the relevant transaction between law-enforcement
authorities and the consenting party. Pérez-Montañez, 202 F.3d at
438. The district court's factual findings relating to the
validity of the consent are reviewed for clear error. See
Marshall, 348 F.3d at 284.
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Although the officers in this case had a valid warrant to
arrest Jones, they did not have a warrant to search Room 318 when
they decided to enter the suite. The district court found the
search of Room 318 constitutionally permissible nonetheless,
because Jones had given his consent freely and voluntarily. Agent
Boucher testified that he advised Jones of his Miranda rights, and
that Jones acknowledged that he understood them. See United States
v. Kimball, 741 F.2d 471, 474 (1st Cir. 1984) (giving of Miranda
rights a factor to consider in totality of circumstances). Agent
Boucher also testified that Jones did not appear to be intoxicated,
that he seemed to understand what was going on, and that neither
Agent Boucher nor any other officer extracted Jones's consent
through threats or promises.4 See Pérez-Montañez, 202 F.3d at 438(threats, intimidation, and coercion are factors to consider in an
analysis of the totality of the circumstances). The district court
found this testimony to be a credible account of what actually
happened. We see no reason to disagree.
Jones argues, however, that three additional factors
should lead us to overturn the district court's finding that his
4
Agent Wolf, who took over the questioning after Agent Boucher,
also testified that Jones was calm and did not seem to be under the
influence of alcohol or drugs.
We give no weight to Jones's halfhearted intimation that he may
have been under the influence of marijuana since the officers, upon
entering Room 318, discovered evidence of marijuana having recently
been smoked by at least one of the suite's several occupants. See
United States v. Luciano, 329 F.3d 1, 8 (1st Cir. 2003).
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consent was free and voluntary. First, he claims his consent could
not have been free or voluntary because neither Agent Boucher nor
any other officer advised him of his right not to cooperate. This
argument is unavailing. We have repeatedly held that the failure
to advise a defendant of his right to refuse consent does not
automatically render such consent invalid. See id. at 438 (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973)); United States
v. Barnett, 989 F.2d 546, 555 (1st Cir. 1993); see also United
States v. Drayton, 536 U.S. 194, 206-07 (2002) (no presumption of
invalidity where person consents without explicit notification of
right to refuse). In the relatively calm environment of the
bedroom in which Jones had been placed, Agent Boucher read Jones
his Miranda rights, and Jones acknowledged that he understood each
of them, agreed to cooperate, and was not apparently under the
influence. The district court did not clearly err in finding that
Jones appreciated the significance of giving consent despite the
officers' failure to advise him of his right to withhold such
consent.
Second, Jones contends that, while none of the officers
applied overt coercion on him to induce his consent, the
circumstances should be regarded as inherently coercive: some ten
to fifteen government agents, guns drawn, entered his hotel suite
without knocking, handcuffed him, placed him in a separate room,
and proceeded to interrogate him. See Barnett, 989 F.2d at 555
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(one factor to be considered in totality of circumstances is
"whether permission to search was obtained by coercive means or
under inherently coercive circumstances"). This argument also
fails. As we have observed, "[a]lthough sensitivity to the
heightened possibility of coercion is appropriate when a
defendant's consent is obtained during custody, 'custody alone has
never been enough in itself to demonstrate . . . coerced . . .
consent to search.'" Id. (citation omitted) (second and third
alterations in original) (quoting United States v. Watson, 423 U.S.
411, 424 (1976)). Upon the officers' entry, Jones and his
associates surrendered to them without a struggle and no shots were
fired. Jones was then handcuffed and made to sit on the edge of a
bed. There is no indication in the record that Jones was
mistreated or placed in an uncomfortable position, or that Agent
Boucher, Agent Bunch, or anyone else brandished a weapon, made
threatening gestures, or spoke threatening words during the
interrogation. Considering the several countervailing factors
outlined above, we find that the circumstances here were not so
inherently coercive as to render Jones's consent unknowing or
involuntary, even when considered together with the officers'
failure to advise Jones of his right to refuse consent.
Third, Jones claims that any valid consent he may have
given was confined to the bedroom in which he had been placed, and
did not extend to the kitchenette or the other rooms of the hotel
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suite. A search justified by consent will be deemed reasonable as
long as it does not exceed the scope of the consent given. See
United States v. Turner, 169 F.3d 84, 87 (1st Cir. 1999). When
determining the scope of consent, we apply a test of objective
reasonableness: "'[W]hat would the typical reasonable person have
understood by the exchange between the officer and the subject?'"
United States v. Meléndez, 301 F.3d 27, 32 (1st Cir. 2002) (quoting
Florida v. Jimeno, 500 U.S. 248, 251 (1991)). This inquiry
requires an examination of the "overall context," including
"contemporaneous police statements and actions." Turner, 169 F.3d
at 87. As in past cases, we state no view on whether the scope of
a given instance of consent is reviewed de novo or merely for clear
error, as in the circumstances of the present case we would affirm
under either standard. See Marshall, 348 F.3d at 286 (citing
Meléndez, 301 F.3d at 32 (noting the split in our sister circuits
on this question)); Turner, 169 F.3d at 87 n.4 (same).
Agent Boucher testified that he asked Jones for consent
to search the "motel room." Jones responded with a simple "yes."
As noted above, Room 318 was actually a suite with two bedrooms, a
kitchenette, a living room, and a bathroom. Although Agent Boucher
did not specify which of these rooms he was seeking consent to
search, Jones did not expressly confine his consent to the bedroom.
The district court found that Agent Boucher had "made it reasonably
clear that he sought consent to search the entire suite, not just
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the bedroom." Jones, 2006 WL 763124, at *11 n.11. We agree. An
objective observer of the transaction between Agent Boucher and
Jones would have understood the term "motel room" to encompass the
whole of Room 318, and not just the bedroom. This is especially
true considering that the officers had already viewed marijuana on
the living room table, in close proximity to the couch on which
Jones was sitting when they entered, and smelled marijuana smoke in
the air; it is reasonable to expect that Jones was aware that the
officers noticed this evidence of recent drug use. In this
context, a reasonable person in Jones's position would have
regarded Agent Boucher as requesting consent to search the whole
suite for additional drugs.
As such, the district court did not err in concluding
that Jones's consent extended to the entire suite, and it was not
unreasonable for Agent Boucher and the other officers to conduct a
search of the other rooms for drugs, including the kitchen cabinet.
Cf. Meléndez, 301 F.3d at 33 (dismantling and looking inside a
speaker did not exceed the scope of consent to search a room, as
"[t]he speaker was located in the area that [the consenting party]
had allowed the officers to search, and was a place in which the
officers could have reasonably suspected drugs to be hidden").
Having dismissed Jones's challenge to his consent to search, we
turn to his third and final assignment of error with respect to the
denial of his suppression motion.
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4. Marshal Cooper's Search of the Kitchen Cabinet
Jones argues that Marshal Cooper's search of the kitchen
cabinet, and consequent discovery of drugs therein, was not
justified as a protective sweep or under any other exception to the
warrant requirement. The district court examined the timeline as
established through the testimony of the various officers at the
suppression hearing, and found that the Government had established
by a preponderance of the evidence that Marshal Cooper actually
discovered the drugs in the kitchen cabinet after Jones had given
his consent to Agent Boucher. We have reviewed the officers'
testimony and conclude that this finding was not clearly
erroneous.5 We briefly explain.
Agent Welsh and Marshal Cooper each testified that when
they entered Room 318, they saw marijuana in plain view on the
living room table. Agent Welsh testified that he immediately
detained and handcuffed Jones, who was sitting on the living room
couch. Jones was promptly taken into the bedroom, where Agent
Boucher began the process of questioning him; according to Agent
Boucher, the point at which Jones gave his consent was some ten to
fifteen minutes after the officers' initial entry into Room 318.
Agent Boucher then left the room and "advised a couple of the
5
With respect to the district court's analysis of the timing of
the consent, we apply the usual standard of review for factual
findings in a decision denying a motion to suppress -- that is,
clear error review. See Marshall, 348 F.3d at 284.
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agents that we in fact had consent from Mr. Jones to search the
motel room." Agent Wolf testified that he was one of those whom
Agent Boucher informed.
According to Marshal Cooper, during this period the other
officers detained Jones's associates and performed a quick scan of
the suite to make sure there were no hidden persons. Marshal
Cooper took responsibility for one of the detainees and initially
had him handcuffed and lying on the bathroom floor. Marshal Cooper
testified that, at this point, it occurred to him to announce to
the other officers that he had seen marijuana on the living room
table, in case they wanted to seek a search warrant. Marshal
Cooper continued: "One of the officers told me at that point that
it's okay, they already had consent." Sometime soon thereafter,
when Marshal Cooper was satisfied that the suite had been secured,
he attempted to relocate the detainee to the kitchenette, where he
searched the cabinet and found what he believed to be drugs. The
district court credited Marshal Cooper's testimony and found that
the search occurred after Jones gave his consent.6
We see nothing in the record that would lead us to
quarrel with this finding, much less to reach a "strong, unyielding
6
At a later point in Marshal Cooper's testimony, the Government
asked again whether Marshal Cooper had learned of Jones's consent
before attempting to relocate the detainee to the kitchenette.
Marshal Cooper responded, "I'm not sure," but immediately clarified
that "I would think it was after." The district court obviously
credited this clarification. It did not clearly err in doing so.
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belief that a mistake has been made," as is required under the
applicable standard of review. C.G. ex rel. A.S., 513 F.3d at 284(citation and internal quotation marks omitted). Because Marshal
Cooper's search of the kitchen cabinet occurred after Jones gave
consent and -- as affirmed above -- the scope of the consent
extended to the kitchen cabinet, it was constitutionally valid.
Given this conclusion, we need not state a view on the district
court's alternative ruling that the search was lawful in any event
by virtue of the "independent source" doctrine.
Finding no infirmity in the denial of Jones's suppression
motion, we proceed to examine the challenges relating to his
sentence.
B. Sentencing
Jones raises two challenges to his sentence. First, he
contends that the sentencing court erred in its calculation of the
quantity of drugs attributable to him, which accounted for a base
offense level of thirty-four. See U.S.S.G. § 2D1.1(c)(3). Second,
he argues that the sentencing court erred in applying a further
two-level upward adjustment to his base offense level for his role
as an organizer, leader, manager, or supervisor of other
participants in the drug-selling enterprise. See id. § 3B1.1(c).
We again note the applicable standard of review, and then consider
these two challenges seriatim.
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1. Standard of Review
A sentencing court's findings of fact -- including its
calculation of drug quantity -- are reviewed for clear error;
questions of law involved in sentencing determinations are reviewed
de novo. United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st
Cir. 2007); United States v. Laboy, 351 F.3d 578, 582, 585 (1st
Cir. 2003). "A question about whether the evidence is sufficient
to support a particular guideline determination is a question of
law and, therefore, engenders de novo review." Ramos-Paulino, 488
F.3d at 463.
2. The Drug-Quantity Calculation
In determining drug quantity for purposes of calculating
a defendant's base offense level under the Guidelines, the
sentencing court may attribute to the defendant "all reasonably
foreseeable quantities of contraband that were within the scope of
the criminal activity that he jointly undertook." U.S.S.G. § 1B1.3
cmt. n.2(ii). "Thus, a drug dealer who engages in criminal
activity with others to further their collective interests may be
held liable for the quantities of drugs sold by his partners, if
those sales were a reasonably foreseeable consequence of the
jointly undertaken actions." Laboy, 351 F.3d at 582. If the
quantity of drugs actually seized does not reflect the full scale
of the offense, the sentencing court may make a reasonable estimate
of the total quantity involved. See id. at 584 (citing U.S.S.G.
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§ 2D1.1 cmt. n.12). The Government must prove drug quantity by a
preponderance of the evidence. Id. at 582. We will uphold the
sentencing court's estimate as long as it is reasoned and finds
support in the record. See id. at 583-84.
In adopting the PSR's recommendation, the sentencing
court found Jones responsible for 4,174.16 kilograms of marijuana
equivalent.7 This figure included 0.8 grams of powder cocaine
(0.16 kilograms of marijuana equivalent) seized from Room 318, and
25.8 grams of crack cocaine (516 kilograms of marijuana equivalent)
estimated from what coconspirator Thomas told federal agents he had
introduced into the southern Maine market as part of the
conspiracy.8
The PSR estimated the remaining amount as 3,658 grams of
heroin (3,658 kilograms of marijuana equivalent). This quantity
7
As there are different controlled substances involved, the
probation office converted each of the drugs into its "marijuana
equivalent," added the quantities, and looked up the total in the
drug quantity table in U.S.S.G. § 2D1.1(c). See U.S.S.G. § 2D1.1
cmt. n.10(B).
8
Thomas told agents that, on at least three occasions, he went to
New Jersey and brought back "hundreds" of vials of crack cocaine to
Maine. The PSR estimated conservatively that Thomas had made three
trips and brought back 100 vials per trip, at an average of 0.086
grams of crack cocaine per vial, for a total of 25.8 grams.
For unknown reasons, the PSR did not recommend that Jones's
sentence reflect other drugs it determined had been seized from
Foster, Thomas, customers including a confidential informant, and
from Room 318, as well as a quantity of heroin a customer named
William Zinn admitted to having purchased from Jones. These
amounted to 2.909 additional grams of crack cocaine and 15.512
grams of heroin.
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was based mainly on the trial testimony of Foster that he received
heroin from Jones and Thomas and distributed twenty bricks of
heroin per week for twelve weeks from April to June 2005, and sixty
bricks per week for twelve additional weeks from July to September
2005, until Foster was arrested. A brick of heroin consists of
fifty bags at 0.059 grams each, for a total of 2,832 grams
distributed by Foster. The PSR then determined that Jones
continued in the conspiracy after the arrests of Foster and Thomas
on September 19, 2005, until Jones's own arrest at the TownePlace
Suites fourteen weeks later on December 29, 2005. The PSR
continued:
However, as there is no evidence of the
quantities distributed during this time frame
and the impact . . . the arrest of [Jones's]
co-defendant's [sic] had on his ability to
continue to distribute large amounts (60
bricks a week), the Probation Office has used
the conservative amount of 20 bricks a week.
Twenty bricks per week for the fourteen weeks from September 19,
2005, to December 29, 2005, produced a total of 826 grams. Added
to the estimate of the amount Foster distributed for the
conspiracy, the total came to 3,658 grams of heroin, or 3,658
kilograms of marijuana equivalent.
This amount added to the 516.16 kilograms of marijuana
equivalent in crack and powder cocaine produced a grand total of
4,174.16 kilograms of marijuana equivalent. The sentencing court
found the facts presented in the PSR to be credible, and opined
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that "in all likelihood the amounts were probably greater than that
set forth in the [PSR] and I find those quantities." In other
words, the sentencing court found Jones responsible for 4,174.16
kilograms.
In challenging this finding, Jones argues that the real
weight attributable to him should be 2,176.20 kilograms of
marijuana equivalent; he explained how he reached this figure in
his brief and again at oral argument. Jones also alleges that the
826 grams the PSR attributed to him for September to December 2005
is "pure speculation." Jones's estimated quantity -- 2,176.20
kilograms -- would result in a base offense level of thirty-two.
U.S.S.G. § 2D1.1(c)(4).
Yet even if we assume that Jones has provided us and the
sentencing court with a plausible estimate of the drug quantity
attributable to him, he cannot prevail. This is because we find
the PSR's estimate also to be generally plausible and that it
enjoys a preponderance of record support primarily in the trial
testimony of Foster. The sentencing court was therefore within its
discretion when it chose the PSR's estimate over Jones's estimate.
See United States v. Marks, 365 F.3d 101, 105 (1st Cir. 2004).
We say "generally" plausible because we do agree with
Jones in one respect. We are dissatisfied with the PSR's poorly
reasoned conclusion that Jones was responsible for 826 grams of
heroin (826 kilograms of marijuana equivalent) distributed between
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September and December 2005, a finding for which the PSR conceded
"there is no evidence" but that the sentencing court nonetheless
adopted. Yet we need not decide whether such adoption was clearly
erroneous, because any error that may have occurred was harmless.
The threshold quantity that triggers a base offense level of
thirty-four -- that which Jones received -- is 3,000 kilograms of
marijuana equivalent. U.S.S.G. § 2D1.1(c)(3). Even if we
subtracted 826 from 4,174.16, the total found by the sentencing
court, we would still be left with 3,321.16 kilograms, and Jones
would receive the same base offense level. Cf. United States v.
Hernández, 218 F.3d 58, 71 (1st Cir. 2000) (finding determination
of drug quantity harmless, even if erroneous, as it did not affect
defendant's sentence). We move on to Jones's final assignment of
error.
3. The § 3B1.1(c) Two-Level Increase
The Guidelines provide for an upward adjustment to a
defendant's base offense level due to the relative importance of
his role in the offense. United States v. Cruz, 120 F.3d 1, 3 (1st
Cir. 1997) (en banc) (citing U.S.S.G. § 3B1.1(c)). To qualify for
a § 3B1.1(c) upward adjustment, the evidence must show that the
defendant "exercised control over, organized, or was otherwise
responsible for superintending the activities of" at least one
other participant in a criminal activity on at least one occasion.
United States v. García-Morales, 382 F.3d 12, 19 (1st Cir. 2004)
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(quoting Cruz, 120 F.3d at 3); accord United States v. Voccola, 99
F.3d 37, 44 (1st Cir. 1996) (single directed transaction is
enough). While this showing is not a particularly onerous one to
make, it is not enough that the defendant merely controlled,
organized, or managed criminal activities, but must instead
control, organize, or manage criminal actors. Ramos-Paulino, 488
F.3d at 464.
After hearing the parties' arguments, the sentencing
court found that the Government had satisfied the requirements of
§ 3B1.1(c) by a preponderance of the evidence:
I've taken into account the evidence in this
case including the nature of this offense, the
fact that [Jones] was directing his runners,
the fact that I believe he was given a greater
share of the monies involved in this
conspiracy, the fact that he was the key
planner and organizer of the conspiracy, the
others were basically runners for him, and his
degree of control and authority and I think
the two level enhancement is modest in this
case based on my understanding of the evidence
. . . .
Jones takes issue with this determination. He argues that, while
he supplied his alleged accomplices with drugs to sell, there was
no evidence presented at trial to show that he recruited any of
them, that he collected a disproportionate share of the proceeds of
the drug-selling venture, or that he exercised any control or
authority over the accomplices' activities. Instead, a drug
supplier in New York oversaw the venture.
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This argument is unavailing. There is an abundance of
evidence in the record -- including in the trial testimony of
Foster and several federal agents -- to support the sentencing
court's finding that Jones coordinated the actions of a number of
drug sellers including, most importantly, Thomas and Foster. Jones
essentially controlled the supply of the drugs to these persons,
and determined to a considerable extent when and where they would
make deliveries. This is more than sufficient to satisfy the
Government's modest burden under § 3B1.1(c). In spite of Jones's
assertions to the contrary, § 3B1.1(c) does not require a showing
that he recruited accomplices or received a disproportionate share
of the proceeds. The sentencing court therefore committed no error
in finding Jones to be an organizer, leader, manager, or supervisor
of at least one other criminal actor, and the two-level enhancement
was justified. Jones's sentence stands.
III. Conclusion
For these reasons, we affirm Jones's conviction and
sentence.
Affirmed.
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