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.
Norman E. V. D'Andrea, by Appointment of the Court, for
appellant.
Kenneth P. Madden, Assistant United States Attorney, with
whom Lincoln C. Almond, United States Attorney, was on brief for
appellee.
August 31, 1993
* Of the Second Circuit, sitting by designation.
TORRUELLA, Circuit Judge. On December 4, 1991, a
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,
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
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
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.
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
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
Mitigating Role. Guideline 3B1.2 allows for a
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.
1992), cert. denied, 113 S. Ct. 1005 (1993). Since role-in-the-
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
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)
(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.
1992); United States v. Pineda, 981 F.2d 569, 572 (1st Cir.
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).
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.
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
$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,
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
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
States v. Walton, 908 F.2d 1289, 1301 (6th Cir.) (internal
quotation omitted), cert. denied, 111 S. Ct. 273 (1990)).
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);
Sklar, 920 F.2d at 114; see also United States v. Duarte, 950
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).
In United States v. Gerante, the defendant was arrested
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
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)
(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
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
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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