United States v. Jackson

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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