March 27, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1915
UNITED STATES,
Appellee,
v.
JORGE SILVA, A/K/A VICTOR MALDONADO-GARCIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judge.
Eileen M. Donoghue on brief for appellant.
Donald K. Stern, United States Attorney, and Carole S. Schwartz,
Assistant United States Attorney, on brief for appellee.
Per Curiam. Appellant, Jorge Silva, pleaded
guilty to charges of conspiracy to possess cocaine with
intent to distribute and possession of cocaine with intent to
distribute. The district court, after a lengthy hearing on
the issue of the amount of cocaine that appellant knew or
reasonably foresaw was involved in the relevant transaction,
found that the full nine kilograms was attributable to him.
Accordingly, on July 21, 1994, it imposed the mandatory
minimum ten-year prison sentence prescribed by statute. See
21 U.S.C. 841(b)(1)(A)(ii). Appellant's sole argument on
appeal is that it was clear error for the district court to
find that the government proved by a preponderance of the
evidence that Silva knew or reasonably foresaw that five or
more kilograms of cocaine were involved in the transaction
underlying the possession charge. Appellant urges that his
sentence be recalculated based upon a quantity of one-to-four
kilograms of cocaine. We affirm.
The statements and findings by the district court at the
sentencing hearing, as well as the parties' briefs, seem to
assume that only the amount of drugs that appellant knew or
reasonably foresaw as being involved in his conduct can be
attributed to him for purposes of imposing mandatory minimum
sentence. See United States v. Ekwunoh, 813 F. Supp. 168,
178 (E.D.N.Y. 1993), vacated on other grounds, 12 F.3d 368
(2d Cir. 1994). Although that argument has been presented to
this court, we have not yet been required to resolve the
issue. See United States v. Ortiz, 23 F.3d 21, 28 (1st Cir.
1994); United States v. Beasley, 12 F.3d 280, 285 (1st Cir.
1993). Nor are we required to resolve it here. The record
clearly supports a finding by a preponderance of the evidence
that appellant reasonably foresaw the quantity of drugs upon
which his sentence was based.
"For sentencing purposes, the government must prove drug
quantities by a preponderance of the evidence." United States
v. Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993). The
district court's judgment as to the quantity of drugs
reasonably foreseen by the appellant will not be disturbed
unless clearly erroneous. See, e.g., United States v. De La
Cruz, 996 F.2d 1307, 1314 (1st Cir.), cert. denied, U.S.
, 114 S.Ct. 356 (1993). Given that the mandatory minimum
sentence applies so long as quantities of five grams or more
are involved, this court need only determine whether the
court clearly erred in attributing that amount of cocaine to
Silva. See Sepulveda, 15 F.3d at 1200.
The record supports the court's finding that the
government proved by a preponderance of the evidence that
Silva knew or reasonably foresaw that the drug transaction in
which he participated involved five or more kilograms of
cocaine. Both appellant and the government relied at the
sentencing hearing on transcripts from the trial of a co-
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defendant, Jaime Corrales, at which the sentencing judge
presided. Those transcripts demonstrate that Silva was
responsible for making deliveries of the drugs for the
conspirators. They further show that at some point during the
transaction, Silva brought the bag containing nine kilograms
of cocaine to the owner of the cocaine. From the weight of
the bag alone, he could have reasonably foreseen that it
contained five or more kilogramos of cocaine. See United
States v. Ortiz, 23 F.3d at 28 (concluding that "there would
be no basis for finding that defendant did not foresee that
at least five kilograms of cocaine were involved in his
crimes" where the bags containing the cocaine "were visibly
heavy" and actually contained twenty-five kilograms of
cocaine); United States v. Beasley, 12 F.3d at 284
(concluding that record supported finding of "actual
knowledge" that transaction involved more than one kilogram
of heroin where the suitcase in fact contained more than
three kilograms and defendant had lifted and shaken the
suitcase.) There being no clear error in the district
court's finding with respect to drug quantity, appellant's
sentence is affirmed. See 1st Cir. Loc. R. 27.1.
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