UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1306
UNITED STATES,
Appellee,
v.
PEDRO ARISMENDY OLIVIER-DIAZ
a/k/a ARTY,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
George L. Garfinkle with whom Jeffrey A. Denner and Perkins,
Smith & Cohen were on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney, and Jonathan Toof,
Assistant United States Attorney, were on brief for appellee.
December 22, 1993
*Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. Defendant Pedro
Arismendy Olivier-Diaz appeals from the sentence he received
after he was found guilty of conspiracy to possess cocaine
with intent to distribute and aiding and abetting the
distribution of cocaine. See 21 U.S.C. 841(a)(1), 841
(b)(1)(c), 846, and 18 U.S.C. 2. Arismendy challenges his
sentence on two grounds. First, he contends that the
district court erred in calculating his offense level under
the federal sentencing guidelines when it (1) relied on the
testimony of an allegedly untrustworthy witness to determine
the amount of cocaine involved in the conspiracy and (2)
concluded on the basis of inadequate evidence that he acted
as an organizer or leader of a criminal activity involving
five or more participants. Second, he claims for the first
time on appeal that the court engaged in "double counting"
when it increased his criminal history category by using
prior convictions that allegedly resulted from the
conspiracy on which his federal sentence was based. Finding
no reversible error, we affirm Arismendy's sentence in all
respects.
I.
BACKGROUND
A. The Offenses
During the fall of 1990, Arismendy met Ramon
Verona, a small-time drug dealer, and offered to sell him cocaine.
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Verona initially declined. However, he later contacted Arismendy
on two occasions and purchased 125 grams of cocaine on credit. Two
or three months later, Arismendy persuaded Verona and an
unidentified woman to make several trips from New York to
Massachusetts to transport cocaine. Once in Massachusetts, Verona
and the courier delivered the cocaine to a confederate of
Arismendy's whom Verona knew only as "Giovanni." For each trip,
Verona was paid $500 and supplied with 125 grams of cocaine on
credit.
Verona used the cocaine he obtained from
Arismendy to supply three of his customers in Maine, Peter Lauzier,
Vicki Hall and Pauline Rivard. Because Verona ran the cocaine
operation on credit, however, debt collection quickly became a
significant problem. By May 1991, Rivard owed Verona approximately
$16,000 for "fronted" cocaine, $4,000 of which was owed to
Arismendy. Arismendy's solution to this problem was to recruit
Verona's paramour, Argentina Dalmassi, and three men, to travel
with him to Maine to collect the debt. On June 2, 1991, the group
arrived at Rivard's home and confronted her boyfriend, Robert
Pelletier. When Pelletier informed them that Rivard was not at
home, Arismendy and the three men ransacked the house, taking some
cash and some jewelry. As they were leaving, Arismendy proposed
that he take possession of Pelletier's boat and provide Pelletier
with cocaine to sell until he paid back what Rivard owed.
Later that day, Arismendy encountered Rivard at a
nearby flower shop and demanded payment. Although she believed
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that she only owed money to Verona, Rivard promised to pay
Arismendy the next day. Moments later, Dalmassi appeared, slapped
Rivard in the face and demanded immediate payment. Arismendy,
however, ordered Dalmassi to leave. The group was arrested on
charges related to this collection attempt but they were all
released on bail later that day. Fearing for her safety when she
learned of their release, Rivard went to the authorities and
offered to cooperate.
In July 1991, Arismendy, unbeknownst to Verona,
began distributing cocaine directly to Lauzier and Hall. For the
next several months, Arismendy supplied them with two to ten ounces
of cocaine every other week. In early October, a customer
contacted Lauzier and Hall and asked to purchase cocaine. In
response, Lauzier and Hall went to a trailer owned by their friend,
Elwin Baker, weighed the cocaine in Arismendy's presence, and drove
to a local bar to make the sale. They were immediately arrested,
however, because their customer sold the cocaine to an undercover
officer of the Maine Bureau of Intergovernmental Drug Enforcement
(MBIDE). Arismendy, who was waiting to be paid for the cocaine,
became concerned after Lauzier and Hall failed to return, and he
sent Baker out to search for them. When Arismendy learned that
they had been arrested, he had Baker drive him back to his home in
New York. Arismendy later placed Baker in charge of Lauzier and
Hall's business and sold him as much as eight ounces of cocaine at
a time.
4
Arismendy was arrested by the MBIDE in January
1992 and was subsequently convicted of the present federal charges
in the United States District Court for the District of Maine.
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B. The Sentence
The court held a sentencing hearing on February
26, 1993. Verona was called as a witness at the hearing and cross
examined by the defense in an effort to attack his trial testimony.
During this examination, Verona testified that he had made at least
four trips from New York to Massachusetts, transporting seven
kilograms of cocaine on the first trip, and added, "I don't
remember well, but I think the other [trips] were about 10
kilograms each." This testimony differed slightly from his trial
testimony where he had claimed that he had made "five or six trips"
and had delivered seven kilograms of cocaine on the first two trips
and ten kilograms on each remaining trip.
In determining Arismendy's total offense level,
the district court first grouped the two counts on which Arismendy
had been convicted, see U.S.S.G. 3D1.2(d), and set his base
offense level at 34 because it found that Arismendy's conduct
involved approximately 36 kilograms of cocaine. See U.S.S.G.
2D1.1(c)(5) (Drug Quantity Table) (establishing base offense level
34 for conduct involving "[a]t least 15 KG but less than 50 KG of
Cocaine"). The court then found that Arismendy had been an
organizer or leader of a criminal activity involving five or more
participants and added four levels to his base offense level. See
U.S.S.G. 3B1.1(a). Finally, because Arismendy had received two
firearms as partial payment for cocaine, the court made an
additional two-level increase to his offense level. See U.S.S.G.
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2D1.1(b)(1). These calculations resulted in a total offense level
of 40.
The court then placed Arismendy in criminal
history category II by assigning one criminal history point to
prior State of Maine convictions for theft and criminal threatening
and a second point to a prior State of New York conviction for
operating a motor vehicle while impaired by alcohol. See U.S.S.G.
4A1.1(c). Accordingly, the court determined Arismendy's
guideline sentencing range to be 324-405 months. The court then
sentenced Arismendy to 365 months in prison, five years of
supervised release and a $5,000 fine. This appeal followed.
II.
DISCUSSION
A. The Offense Level
Arismendy challenges two steps in the district
court's offense level computation. We consider his claims "mindful
that we must both 'accept the findings of fact of the district
court unless they are clearly erroneous' and 'give due deference to
the district court's application of the guidelines to the facts.'"
United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990) (quoting
18 U.S.C.
3742(e)).
1. Cocaine Quantity
Arismendy's first argument is that the sentencing
court erroneously relied on Verona's testimony in determining the
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amount of cocaine involved in the conspiracy because Verona offered
uncorroborated and self-contradictory testimony in an effort to
receive favorable treatment from the government. We reject this
contention.
Arismendy's counsel forthrightly conceded at oral
argument that if Verona's testimony were believed, his claim would
collapse. Given this concession, we easily conclude that the
district court did not err in its drug quantity determination. The
record shows unequivocally that after considering the evidence and
rejecting the same arguments now raised on appeal, the court found
Verona's testimony to be credible. In the absence of clear error,
such assessments are exclusively within the province of the
sentencing court. We find no such error here. Cf. id. at 508
("where there is more than one plausible view of the circumstances,
the sentencing court's choice among supportable alternatives cannot
be clearly erroneous").
2. Leadership Role
Arismendy next claims that the district court
committed clear error when it increased his offense level by four
levels because of his alleged leadership role in the conspiracy.
See U.S.S.G. 3B1.1(a). He contends that the enhancement was
improper because the evidence established only that he acted alone
in selling cocaine to multiple "independent customers." We
disagree.
Two conditions must be met before a leadership
role enhancement is in order under U.S.S.G. 3B1.1(a). See United
8
States v. Preakos, 907 F.2d 7, 9 (1st Cir. 1990) (per curiam).
First, the sentencing court must find that the defendant acted as
"an organizer or leader of a criminal activity." Second, the
activity must have "involved five or more participants or was
otherwise extensive." See United States v. McDowell, 918 F.2d
1004, 1011 (1st Cir. 1990) (quoting U.S.S.G. 3B1.1(a)).
In determining whether a defendant had a
leadership role in criminal activity, the commentary to section
3B1.1 instructs courts to consider such factors as decision making
authority, recruitment of accomplices, degree of participation in
planning the offense, degree of control over others, and a claimed
right to a larger share of the fruits of the crime. U.S.S.G.
3B1.1, comment. (n.4); see also Preakos, 907 F.2d at 9. Because
such "role in the offense" assessments are fact-specific, the
district court's views must be accorded "considerable respect."
See United States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).
The instant record amply supports the district
court's conclusion that Arismendy was an organizer or leader of the
drug distribution conspiracy. The court could reasonably have
inferred from the trial evidence that Arismendy: (1) initiated
cocaine discussions with Verona; (2) convinced Lauzier and Hall to
work with him; (3) attempted to persuade Pelletier to sell cocaine
for him; (4) actively supervised the collection of debts; (5)
instructed Baker to take over the Maine distribution business after
Lauzier and Hall were arrested; and (6) exercised a high degree of
decision making authority both in organizing the multi-kilogram
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cocaine shipments from New York to Massachusetts and in directing
and coordinating Verona and the female courier. Given these
permissible inferences, the court was not clearly erroneous in
finding that Arismendy was an organizer or leader of the criminal
activity. Cf., e.g., Preakos, 907 F.2d at 9-10 (upholding
enhancement where defendant, among other things, "exercised control
over his distributors, at least in the sense that he directed them
with regard to their role in the various cocaine shipments and
apparently coordinated aspects of the distribution").
The district court also could have plausibly
concluded from the record that five or more participants were
involved in Arismendy's criminal activity. Under section
3B1.1(a), a "participant" is any person, including the defendant,
who is "criminally responsible for the commission of the offense .
. . ." See U.S.S.G. 3B1.1, comment. (n.l); see also Preakos, 907
F.2d at 10 (defendant included as a participant under U.S.S.G.
3B1.1(a)). Even without counting the persons Arismendy claims were
merely customers, at least five others, including Arismendy,
Verona, the female courier, Giovanni, and one or more of the four
debt collectors, could reasonably have been considered participants
in Arismendy's criminal activity. Thus, we find no clear error in
the sentencing court's determination.
B. The Criminal History Category
Arismendy's final contention is that the district
court engaged in "double counting" when it used the theft and
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criminal threatening convictions -- which, appellant claims,
resulted from his June 1991, collection attempt against Rivard --
to increase his criminal history category. Arismendy bases this
claim on section 4A1.2(a)(1) of the Guidelines, which provides that
in computing a defendant's criminal history, a court may count only
sentences that were "previously imposed . . . for conduct not part
of the instant offense." He contends that because the theft and
criminal threatening convictions resulted from conduct that was
part of the federal drug distribution conspiracy, these convictions
cannot be used to increase his criminal history category. Since
Arismendy did not raise this claim in the district court, his
sentence can be reversed on this basis only upon a showing of
"plain error." See Fed. R. Crim. P. 52(b). He has failed to make
such a showing here.
Three criteria restrict a reviewing court's
authority to reverse a sentence under the plain error rule. First,
a reviewable error must have occurred during the sentencing
process. Second, the error must be "clear" or "obvious." Third,
the error must affect "substantial rights," which in most cases
means that the defendant must make a specific showing that the
error probably affected his sentence. United States v. Carrozza, 4
F.3d 70, 87-88 (1st Cir. 1993)(citing United States v. Olano, 113
S. Ct. 1770, 1777-78 (1993)). Even if all three criteria have been
satisfied, the reviewing court retains the discretion not to
correct an error, however plain, unless the error "seriously
affect[s] the fairness, integrity or public reputation of judicial
11
proceedings." Olano, 113 S. Ct. at 1779 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)).
Applying the plain error standard, we reject
Arismendy's double counting argument without reaching its merits.
Where the error defendant asserts on appeal depends upon a factual
finding the defendant neglected to ask the district court to make,
the error cannot be "clear" or "obvious" unless the desired factual
finding is the only one rationally supported by the record below.
See United States v. Gaudet, 966 F.2d 959, 962 (5th Cir.), reh'g
denied, 973 F.2d 927 (1992), cert. denied, 113 S. Ct. 1294 (1993).
Here, Arismendy's double counting argument depends upon his claim
that the theft and criminal threatening convictions resulted from
the unsuccessful effort to collect Rivard's cocaine debt. However,
the record on this subject is equivocal at best. The Presentence
Report describes the theft and criminal threatening convictions
without stating whether they resulted from Arismendy's attempt to
collect Rivard's debt. Moreover, the Report states that Arismendy
was arrested on the theft and criminal threatening charges on
August 7, 1991, whereas the unrebutted evidence produced at trial
established that Arismendy was arrested for his role in the debt
collection effort on June 2, 1991. Since Arismendy never
challenged this portion of the Presentence Report, the only support
for his argument in the record is that his attempt to collect
Rivard's cocaine debt involved conduct that could have resulted in
theft and criminal threatening convictions. While we might infer
from this evidence that the theft and criminal threatening charges
12
and the debt collection effort are related, the record also amply
supports the opposite conclusion. We therefore cannot conclude
that the district court committed obvious error in using the theft
and criminal threatening convictions to enhance his criminal
history category.
III.
CONCLUSION
For the reasons expressed above, Arismendy's
sentence is
affirmed.
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