December 15, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2453
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID PHELAN,
Defendant, Appellant.
No. 92-2454
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN LILLIS,
Defendant, Appellant.
No. 92-2455
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND LUCE,
Defendant, Appellant.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on December 6, 1994, is amended
as follows:
On page 4, last line, replace the word "undertake" with the word
"undertaken".
December 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2453
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID PHELAN,
Defendant, Appellant.
No. 92-2454
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN LILLIS,
Defendant, Appellant.
No. 92-2455
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND LUCE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Roger A. Cox, by Appointment of the Court, for appellant Stephen
Lillis.
David Phelan on brief pro se.
Raymond Luce on brief pro se.
Ronald Cohen, by Appointment of the Court, on brief for appellant
Raymond Luce.
George W. Vien, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, and Donald K. Stern, United
States Attorney, were on briefs for the United States.
BOUDIN, Circuit Judge. From 1988 through 1991,
appellant Stephen Lillis' drug organization sold
phencyclidine ("PCP" or "angel dust") in and around
Cambridge, Somerville and Charlestown, Massachusetts. PCP is
usually smoked after it has been diluted with other
substances. Lillis and his associates would procure PCP in
liquid form, and then treat mint leaves with the liquid,
making it smokable. These treated mint leaves would be sold
in packages to customers who contacted the ring by calling an
electronic-beeper "800" telephone number. A street dealer
for the ring--such as co-appellants David Phelan and Raymond
Luce--would return the call and arrange for a place to meet
to complete the sale.
Lillis, Phelan, and Luce stood trial together in late
April 1992. All were convicted of one count of conspiracy to
possess PCP with intent to distribute. 21 U.S.C.
841(a)(1), 846. Lillis was also convicted of several counts
of possession with intent to distribute, 21 U.S.C.
841(a)(1), and Luce was convicted of one such count. Lillis,
classified as an organizer, U.S.S.G. 3B1.1(a), received a
262-month sentence, and Phelan a 151-month sentence. Luce,
largely due to the trial judge's finding that he was a
"career offender," see U.S.S.G. 4B1.1 et seq., received a
360-month sentence.
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On this appeal, each of the appellants challenges his
sentence. Lillis' target is the trial judge's determination
that the Lillis organization distributed or possessed with
intent to distribute between three and ten kilograms of PCP.
Findings as to drug quantities are factual, and we review
them only for clear error. United States v. Whiting, 28 F.3d
1296, 1304 (1st Cir.), cert. denied, 115 S. Ct. 379 (1994).
"[T]he sentencing court has broad discretion to determine
what data is, or is not, sufficiently dependable to be used
in imposing sentence." United States v. Tardiff, 969 F.2d
1283, 1287 (1st Cir. 1992). Yet, because guidelines
sentences vary dramatically depending upon drug quantity, we
have stressed that district courts must exercise care in
making quantity assessments. United States v. Sepulveda, 15
F.3d 1161, 1196 (1st Cir. 1993), cert. denied, 114 S. Ct.
2714 (1994).
Here, the district court attributed to the conspiracy
between three and ten kilograms of a mixture or substance
containing PCP. U.S.S.G. 2D1.1(a)(3), (c). The district
judge based his findings on the evidence presented at trial.
At sentencing, he set forth and explained his findings in
detail. The district court relied most heavily upon the
trial testimony of Robert Knapik, a dealer in the Lillis
organization through much of 1988 and 1989. Based on
Knapik's testimony, the district court found that the
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conspiracy had in its possession two one-gallon containers of
PCP. Using the unchallenged figure of 2.64 kilograms a
gallon, this is obviously more than three kilograms.
Lillis' claim that the district court erred is based on
a misreading of the Knapik testimony. Knapik agreed that
"throughout the entire course of [his] stay there [he] only
observed one liquid gallon of PCP." But immediately before
that statement, Knapik made clear that he was testifying
solely about a Reading location used by the ring. In other
testimony, he testified that he saw a gallon of PCP at what
was apparently a Cambridge location also used by the ring.
We note also that none of the parties objected at the
sentencing hearing when the district court said that two
gallons were proved.
Even if Knapik observed only one liquid gallon
altogether, it appears that this would not affect the
outcome. He also testified to the presence of at least five
pounds of treated mint leaves, which--together with one
liquid gallon--would more than exceed the three kilogram
minimum. Further, while these were the most specific
figures, there was considerable testimony from other
witnesses at trial about the scope and duration of the
conspiracy that made the three kilogram figure plausible, if
not modest, as an estimate of the conspiracy's scale of
operations.
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Luce and Phelan argue that they were essentially street
dealers and not responsible for the large amount of PCP that
the organization sold. Under the Sentencing Guidelines, a
conspirator is responsible for "all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the
commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid
detection or responsibility for that offense." U.S.S.G.
1B1.3(a)(1)(B). This guideline language was added effective
November 1, 1992, after the appellants were sentenced, but so
far as pertinent it is merely a clarification of more oblique
earlier language in force when Luce and Phelan were
sentenced. See United States v. Valencia-Lucena, 988 F.2d
228, 234 n.5 (1st Cir. 1993).
The organization's activities were reasonably
foreseeable to both Luce and Phelan. Although the ring
handled a large volume of PCP, the number of people in the
ring was comparatively small, and the small size of this
group suggests that each of its members knew generally of the
organization's scope and the amount of PCP it was
distributing. Moreover, Knapik saw Phelan deliver liquid PCP
and treated mint leaves to the Reading apartment "two to
three times," and testified that Phelan delivered PCP from
New York to Massachusetts. Knapik observed Phelan making
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anywhere from 200 to 1,000 sales for the organization. The
district court was entitled to believe that Phelan had more
sales than those seen by Knapik.
For his part, Luce was an important street dealer who
worked several shifts for the Lillis organization and played
a role in preparing the PCP for market. Theresa Marrapodi,
Luce's former girlfriend, gave grand jury testimony that she
saw Luce assist Lillis in treating the mint leaves. Knapik
testified that Luce worked a regular evening shift as well as
Saturdays, and a number of customers testified to their
dealing with him. While these purchases do not add up to
three kilograms, they indicate that Luce worked at the heart
of the Lillis organization.
Luce challenges the court's use of Marrapodi's grand
jury testimony in sentencing, since she was not presented for
cross-examination. But reliable hearsay can be used at
sentencing. United States v. Zuleta-Alvarez, 922 F.2d 33, 36
(1st Cir. 1990), cert. denied, 500 U.S. 927 (1991). In
particular, it is settled that district judges may use grand
jury testimony provided it has sufficient indicia of
reliability. See United States v. Williams, 10 F.3d 910,
914-15 (1st Cir. 1993). The factors that we listed in
Williams--testimony given under oath and in a formal grand
jury proceeding--apply with equal force here.
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Luce also contends that the trial judge acted unlawfully
in sentencing him as a "career offender" pursuant to U.S.S.G.
4B1.1. He points to 21 U.S.C. 851(a)(1), which states
that "[n]o person who stands convicted of an offense under
this part shall be sentenced to increased punishment by
reason of one or more prior convictions, unless before
trial . . . the United States attorney files an information
with the court . . . stating in writing the previous
conviction to be relied upon." Since no information was
filed, and since he received a greater sentence due to career
offender status, Luce reasons that his sentence must be
vacated.
Section 851(a)(1) does not apply to sentence increases
under the Sentencing Guidelines but only to increases in the
statutory maximum or minimum penalty based on a prior
conviction. United States v. Sanchez, 917 F.2d 607, 616 (1st
Cir. 1990), cert. denied, 499 U.S. 977 (1991). Every circuit
to consider the issue agrees. See, e.g., United States v.
Koller, 956 F.2d 1408 (7th Cir. 1992); United States v.
Whitaker, 938 F.2d 1551 (2d Cir. 1991), cert. denied, 112 S.
Ct. 977 (1992). Here, Luce's indictment charged him with
conspiracy to possess more than one kilogram of PCP with the
intent to distribute it, a felony that carries with a
statutory minimum of ten years and a maximum of life
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imprisonment, 21 U.S.C. 841(b)(1)(A)(iv), and he was
sentenced within that range.
Finally, the district court did not err by refusing to
sever Luce's trial from that of Phelan and Lillis. We review
the trial judge's refusal to sever "only for a manifest abuse
of discretion resulting in a miscarriage of justice." United
States v. Welch, 15 F.3d 1202, 1210 (1st Cir. 1993), cert.
denied, 114 S. Ct. 1661 (1994). Luce has made no such
showing of unfair prejudice and, because a single conspiracy
was plausibly charged, the testimony against Lillis and
Phelan would generally have been admissible against Luce even
if his trial had been severed. See United States v.
Innamorati, 996 F.2d 456, 469 (1st Cir.), cert. denied, 114
S. Ct. 409, 114 S. Ct. 459 (1993).
Affirmed.
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