United States v. Shrader

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-1830

UNITED STATES,

Appellee,

v.

MARK H. SHRADER,

Defendant, Appellant.

No. 94-2002

UNITED STATES,

Appellee,

v.

RICKY GAGNON,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Tony F. Soltani, with whom Soltani Law Office was on brief for

appellant Mark H. Shrader; Jonathan R. Saxe, with whom Twomey & Sisti

Law Offices was on brief for appellant Ricky Gagnon.

Jean L. Ryan, Assistant United States Attorney, with whom Paul M.

Gagnon, United States Attorney, was on brief for appellee.

May 23, 1995

BOWNES, Senior Circuit Judge. In this appeal,
BOWNES, Senior Circuit Judge.

defendants-appellants Mark Shrader and Ricky Gagnon challenge

the sentences imposed upon them after they pleaded guilty to

conspiring to possess marijuana with the intent to distribute

it. Having carefully reviewed the record and considered

defendants' arguments, we affirm.

I.
I.

The facts, which are derived from the presentence

investigation reports and oral and documentary evidence

introduced at the sentencing hearings, are as follows.

In late 1991 or early 1992, Gagnon, then a Colorado

resident, met with two co-conspirators -- Lee Zahler and

Robert Audette -- at Bea's Restaurant in Epping, New

Hampshire. Knowing that Gagnon had previously distributed

marijuana in New Hampshire, Audette queried Gagnon about

marijuana availability. Gagnon responded that, in Colorado,

Audette could obtain large quantities of marijuana for a low

price.

In February 1992, Zahler and Audette flew to

Denver, Colorado. Gagnon picked them up at the airport and

eventually took them to his residence in Aurora, Colorado,

where they examined seventeen pounds of marijuana. Ten to

twelve pounds of this marijuana were high quality; the rest,

however, was moldy. Zahler expressed displeasure with the

overall quality and theprice of the marijuana hehad examined.

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At some point, Shrader -- Gagnon's supplier --

showed up at the Aurora residence. Gagnon introduced him to

Zahler and Audette as "Mark" and "Bandido Mark." Shrader's

nickname stemmed from his association with the Bandidos

Motorcycle Club. After Zahler informed Shrader of his

displeasure with the price of the marijuana he had seen,

Shrader told Zahler he would have to go to Texas -- the point

of origin for the marijuana Shrader's associates were

bringing into Colorado -- if he wanted it any cheaper.

Zahler and Audette then discussed with Shrader the

possibility of their purchasing fifty pounds of marijuana in

Texas. They agreed that the Texas transaction would be

"middled" by Gagnon, who knew Shrader's last name and how to

reach him. Zahler and Audette also agreed to purchase the

seventeen pounds of marijuana they had already examined.

Subsequently, they concealed it in a couple of stereo

speakers and shipped it back to New Hampshire. Gagnon

received $850 for putting the deal together. Thereafter,

Zahler and Audette returned home.

Later that month, Gagnon called Zahler and

confirmed that Shrader could and would deal with Zahler and

Audette in Texas. On March 4, 1992, Zahler and Audette flew

to Austin, Texas, checked into the Radisson Plaza Hotel, and

called Gagnon to let him know where they were staying. Later

that same day, Shrader came to the hotel in order to view the

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$40,000 Zahler and Audette had brought with them in order to

complete the fifty-pound deal discussed in Aurora. The deal

was scheduled for the next day. Zahler became concerned,

however, when he learned that, on the following day, there

also would be a law enforcement convention at the Radisson

Plaza. He and Audette therefore moved to a Holiday Inn.

Because he had no other way to contact Shrader, Zahler called

Gagnon in Colorado and informed him of his and Audette's new

location. Despite the move, Audette's anxiety level

increased and he flew back to New Hampshire.

At 6:00 p.m. on that same evening, Shrader showed

up at the Holiday Inn with a marijuana sample. Zahler

rejected it as low-quality. Shrader told him he could

procure better marijuana, but that it would take some time.

Shrader also told Zahler of his association with the

Bandidos, and that the source of the marijuana was the

president of the Bandidos' local chapter. Over the next

couple of days, ten telephone calls were placed from Gagnon's

Aurora, Colorado, residence to the Holiday Inn at which

Zahler was staying. In addition, four calls were placed from

Zahler's room to Gagnon's home in Aurora. Most of these

calls were of short duration.

On March 7, 1992, Zahler purchased thirty-five

pounds of marijuana from Shrader and four other men. The

sale took place at the Holiday Inn. Zahler paid Shrader

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$31,500 in cash, of which Shrader took $3,200 for himself.

One of the four other men present at the sale -- the one who

carried the duffel bag of marijuana into Zahler's room -- was

wearing Bandidos paraphernalia. Shrader accompanied this man

into Zahler's room. Zahler subsequently shipped the thirty-

five pounds of marijuana to an acquaintance in Haverhill,

Massachusetts.

On August 25, 1993, a federal grand jury returned

an indictment against Shrader, Gagnon, and six others. Inter

alia, the indictment charged Shrader and Gagnon with

conspiring to possess marijuana with the intent to distribute

it. 21 U.S.C. 846. On December 1, 1993, the grand jury

returned a superseding indictment against Shrader and seven

others (including one of the original six co-defendants). On

December 8, 1993, Gagnon pleaded guilty to the conspiracy

charge. On March 1, 1994, Shrader followed suit.

A. Shrader's Sentencing
A. Shrader's Sentencing

On July 15, 1994, the district court sentenced

Shrader. The court assigned Shrader a base offense level

("BOL") of eighteen based upon the fifty-two pounds of

marijuana involved in the two deals. See U.S.S.G. 2D1.1(c)

(November 1, 1993) (drug quantity table). The court then

added two levels because it determined that Shrader was a

manager/supervisor of the offense, see 3B1.1(c), subtracted

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two levels for acceptance of responsibility, see 3E1.1(a),

and arrived at a total offense level ("TOL") of eighteen.

Shrader's criminal history, which included, inter

alia, five driving-while-intoxicated ("DWI") convictions,

dictated that he be assigned a criminal history category

("CHC") of III. This assignment did not, however, take into

account two of the DWI convictions and one careless driving

conviction which involved Shrader's use of alcohol; nor did

it take into account the fact that Shrader was arrested again

for DWI (and for criminal mischief) after his guilty plea but

prior to sentencing in this case, and that, in revoking

Shrader's bail, the federal district court had found probable

cause to believe that Shrader had driven while intoxicated.

See 4A1.1(c) (capping at 4 the number of CHC points to be

assigned for previous sentences of less than sixty days).

The record reflects that, in connection with prior sentences,

Shrader had been ordered to complete substance abuse

rehabilitation programs on at least three occasions.

Taking note of the uncounted conduct, the court

decided to depart upward because Shrader's CHC significantly

understated both his criminal history and his predisposition

towards recidivist behavior. See 4A1.3 (endorsing upward

departures where the CHC "significantly under-represents the

seriousness of the defendant's criminal history or the

likelihood that the defendant will commit further crimes").

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Following the procedure prescribed in 4A1.3, the court

found that Shrader's criminal history most closely resembled

that of a defendant with a CHC of IV. It then sentenced

Shrader at the upper end of the guideline range applicable to

a defendant with a TOL of eighteen and a CHC of IV: fifty-

one months' imprisonment.

B. Gagnon's Sentencing
B. Gagnon's Sentencing

On August 31, 1994, following a two-day hearing at

which Gagnon testified that he was involved in the Colorado

transaction but not the Texas transaction, the district court

sentenced Gagnon. Relying on affidavits submitted by Zahler

and Audette which stated that Gagnon had middled the Texas

transaction, testimony from New Hampshire State Trooper

Robert Quinn which, inter alia, vouched for Zahler's and

Audette's credibility and rebutted Gagnon's testimony that he

was never involved in any drug deals other than the one in

Colorado, and documentary evidence of the phone calls between

Gagnon's Aurora residence and the hotels in Austin at which

Zahler and Audette stayed, the court rejected Gagnon's claim

regarding the Texas transaction.

The court therefore assigned Gagnon a BOL of

eighteen based upon the fifty-two pounds of marijuana

involved in the two transactions. The court then added two

levels for obstruction of justice (finding that Gagnon

perjured himself at the sentencing hearing), see 3C1.1,

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subtracted three levels for acceptance of responsibility, and

arrived at a TOL of seventeen. There was no dispute that

Gagnon's CHC was I. The court thereafter sentenced Gagnon

near the lower end of the guideline range applicable to a

defendant with a TOL of seventeen and a CHC of I: twenty-

five months' imprisonment.

II.
II.

On appeal, Shrader assigns error to the district

court's determinations that his CHC significantly

underrepresented both his criminal history and his recidivist

proclivities. Shrader also challenges the court's two-level

manager/supervisor enhancement under 3B1.1(c). Gagnon

assigns error to the court's attribution to him of the

thirty-five pounds of marijuana involved in the Texas

transaction, and to its two-level enhancement for obstruction

of justice. He also contends that he was deprived of his

Sixth Amendment confrontation rights at his sentencing

hearing. We discuss each appeal in turn.

A. Shrader's Appeal
A. Shrader's Appeal

Shrader's challenge to his CHC enhancement is two-

pronged. First, Shrader contends that a CHC of III does not

"significantly under-represent[] the seriousness of [his]

criminal history or the likelihood that [he] will commit

further crimes." Second, he asserts that the extent of the

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departure was unreasonable in light of the departure-related

circumstances. Neither argument persuades us.

We have observed:

[A]ppellate review of a decision to
depart may involve three subsidiary
questions: 1) review of the departure-
related circumstances to determine
whether or not they are of a kind or
degree that they may appropriately be
relied upon to justify departure; 2)
review of the evidence to see if it
supports the departure-related findings
of fact; and 3) review of the record
support for the direction and degree of
departure.

United States v. Rivera, 994 F.2d 942, 950 (1st Cir. 1993)

(citation and internal quotation marks omitted). Shrader's

second argument -- which falls squarely within the third of

these three categories -- is subject to a deferential

standard of review. Id. ("review of departure direction and

degree will take place with full awareness of, and respect

for, the sentencing court's superior feel for the case")

(citation and internal quotation marks omitted).

Shrader's first argument falls within a subset of

the first of these three categories, a subset described in

Rivera as involving "a judgment about whether the given

circumstances, as seen from the district court's unique

vantage point, are usual or unusual, ordinary or not

ordinary, and to what extent." Id. at 951 (contrasting this

subset with the "quintessentially legal" type of category one

question, which requires that we simply interpret the words

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of a guideline). Because a district court may have a better

take on the unique circumstances of the particular case

before it and is likely to have seen more "ordinary"

Guidelines cases (and therefore will more readily recognize

the extraordinary case), we review a district court's

"unusualness" determination "with full awareness of, and

respect for, the trier's superior feel for the case, not with

the understanding that review is plenary." See id. at 951-52

(citation and internal quotation marks omitted). Thus, the

district court's findings that a CHC of III significantly

understated both Shrader's criminal history and his

predisposition towards recidivist behavior are entitled to

deference.

Shrader devotes great energy to arguing that his

criminal history was accurately captured by CHC III, but

spends little effort addressing the district court's

determination that CHC III significantly under-represented

the likelihood that he would commit further crimes. We note

that this latter "recidivist determination" alone, if within

the district court's discretion, is sufficient to support a

departure. See 4A1.3 ("A departure . . . is warranted when

the criminal history category significantly under-represents

the seriousness of the defendant's criminal history or the

likelihood that the defendant will commit further crimes.")

(emphasis supplied). In this case, however, we think that

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the record evidence of Shrader's tendency to repeat the

extremely dangerous offense of DWI is sufficient to uphold

both of the court's findings.

We acknowledge that any criminal defendant with a

CHC of III -- which covers defendants with four to six

criminal history points -- is likely to have been convicted

more than once and therefore likely to have exhibited some

recidivist tendencies. See 4A1.1 (assigning (a) three CHC

points for each prior sentence exceeding one year and one

month; (b) two points for sentences of more than sixty days

not counted under section (a); (c) one point (up to a total

of four) for sentences not counted under (a) or (b); and (d)-

(f) additional points for specific offense characteristics

not relevant here). And we further acknowledge that, by

capping at four the number of less-than-sixty-days sentences

that can be counted, 4A1.1(c) contemplates the disregarding

of some misdemeanor criminal behavior. Even so, Shrader's

record of persistently disregarding the law strikes us as

unusual.

Because Shrader somehow never received a prison

sentence of more than sixty days for any of his five DWI

convictions, only three of these convictions (along with a

fourth, non-DWI misdemeanor conviction) were counted for CHC

purposes. Thus, as we have noted, Shrader's CHC did not take

account of two DWI convictions. Nor did it take into account

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his careless-driving conviction. Finally, it did not take

account of the DWI arrest on which the federal district court

had held a probable cause hearing in revoking Shrader's bail.

See supra at 7.

In all, Shrader's CHC took account of only three of

seven incidents during which Shrader threatened the lives of

himself and others by operating a motor vehicle while

compromised by alcohol. And it did not account for the fact

that Shrader had thrice been ordered to undergo

rehabilitation programs designed to deter the very behavior

underlying these incidents. In view of all this, we cannot

say that the district court abused its discretion in

determining that Shrader was more likely to commit further

crimes than the typical defendant with a CHC of III. And in

light of the life-threatening nature of the illegal conduct

in which Shrader has repeatedly engaged, we cannot say that

the court abused its discretion in finding that Shrader's

criminal history is more serious than that of the typical

defendant with a CHC of III.

Shrader also argues that the degree of departure --

ten months beyond the upper end of the applicable guideline

range -- constituted an abuse of discretion. In so

asserting, Shrader points out that even if his two other DWI

convictions had been counted, he still would have had a CHC

of III. He contends that, in essence, he was given a ten-

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month sentence for his most recent DWI arrest which, he

asserts, should not have been considered at all. See 4A1.3

("a prior arrest record itself should not be considered under

4A1.3") (emphasis supplied). His argument completely

overlooks the careless driving conviction and the court's

probable cause determination on the most recent DWI arrest.

More importantly, it disregards the recidivist implications

of his constantly repeating the same dangerous criminal

behavior despite previous sentences containing rehabilitative

components aimed directly at the behavior. When evaluated in

this context, Shrader's argument falls far short.

The record reflects that the court faithfully

followed the recommendation of 4A1.3 by determining that

Shrader's criminal history and recidivist tendencies most

closely resembled that of a defendant with a CHC of IV, and

then sentencing Shrader within the guideline range specified

for a defendant with a CHC of IV. The court's process and

reasoning were impeccable, and resulted in a sentence that is

facially reasonable. There was no abuse of discretion in the

district court's degree of departure.

Shrader's challenge to the court's two-level

manager/supervisor enhancement pursuant to 3B1.1(c)

requires less discussion. We review the court's

determination only for clear error, see United States v.

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Morillo, 8 F.3d 864, 871 (1st Cir. 1993), and perceive none

here.

Shrader argues that the record, read in the light

most favorable to the government, establishes no more than

that he was a "steerer," a "go-between," or a "functionary"

in the Texas and Colorado transactions. See United States v.

Sostre, 967 F.2d 728, 733 (1st Cir. 1992) (one who merely

"steers" drug buyers to sellers ordinarily cannot be

considered a manager/supervisor under 3B1.1). Shrader

misreads the record in making this argument.

As the district court observed in its detailed

findings of fact, Shrader did far more than bring people

together; he was, in fact, the principal through whom the

Bandidos conducted the Colorado and Texas sales. At the

meeting and sale in Aurora, Colorado, Shrader committed his

organization -- an organization with several other

participants -- to the deal subsequently consummated in

Texas. When Zahler balked at the quality of the marijuana

first presented in Texas, Shrader stated that he could, and

later did, procure higher-grade material. And Shrader

oversaw the execution of the Texas deal; while another

Bandido carried the marijuana into Zahler's hotel room,

Shrader accepted and counted the money, and paid himself on

the spot. In sum, Shrader managed the Colorado and Texas

transactions, and supervised at least one other individual in

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the course of so doing. No more is required. See 3B1.1,

comment. (n.2) ("To qualify for an adjustment under this

section, the defendant must have been the organizer, leader,

manager, or supervisor of one or more other participants.")

The district court's role-in-the-offense enhancement was not

clearly erroneous.

B. Gagnon's Appeal
B. Gagnon's Appeal

Gagnon concedes that his challenges to the district

court's attribution to him of the marijuana from the Texas

transaction and imposition of the obstruction of justice

enhancement (for denying involvement in the Texas transaction

at the sentencing hearing) rise or fall on the sustainability

of the court's factual finding that Gagnon was involved in

the Texas transaction. Because the court's finding is easily

sustainable, Gagnon's arguments necessarily fail.

We will affirm a district court's obstruction-of-

justice enhancement unless it is clearly erroneous. United

States v. Ovalle-Marquez, 36 F.3d 212, 225 (1st Cir. 1994),

cert. denied, 115 S. Ct. 947 (1995). And in the absence of

clear error, so too will we affirm a district court's drug

attribution, relevant-conduct determination, United States v.

Innamorati, 996 F.2d 456, 489 (1st Cir.), cert. denied, 114

S. Ct. 409 (1993), and credibility assessment, United States

v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir. 1993). Thus, our

inquiry reduces to whether the district court clearly erred

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in disbelieving Gagnon's testimony and finding that Gagnon

was involved in the Texas transaction. We discern no clear

error in the court's finding.

As we already have explained, the court premised

its finding on the affidavits submitted by Zahler and

Audette, the testimony from New Hampshire State Trooper

Robert Quinn, and the documentary evidence of the phone calls

between Gagnon's Aurora residence and the hotels in Texas at

which Zahler and Audette stayed during the days preceding the

Texas drug deal. Gagnon does not dispute that, if the Zahler

and Audette affidavits are credited, this is a more than

adequate basis to support the court's finding. He argues,

however, that the court erred in crediting these "unreliable"

affidavits over his own sworn testimony. He further contends

that the other evidence is insufficiently corroborative or

probative to ground the challenged finding. Because we

disagree with Gagnon's argument regarding the Zahler and

Audette affidavits, we need not consider the independent

effect of Quinn's testimony and the telephone records.

It is settled that a "sentencing judge is vested

with wide discretion to determine the information on which

sentencing guideline decisions will be based, and may

consider reliable hearsay evidence." United States v.

Montoya, 967 F.2d 1, 3 (1st Cir.) (citation omitted), cert.

denied, 113 S. Ct. 507 (1992); see also 6A1.3 (evidence

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with "sufficient indicia of reliability to support its

probable accuracy" may be considered at sentencing "without

regard to its admissibility under the rules of evidence

applicable at trial"). The judge also has "wide discretion"

in determining whether sentencing information is reliable.

Montoya, 967 F.2d at 3 n.6. Mindful of these tenets, we

believe that the district court acted within its discretion

in crediting the Zahler and Audette affidavits.

The thrust of Gagnon's argument is that Zahler and

Audette, as cooperating co-conspirators, had such strong

incentives to inculpate Gagnon that the largely

uncorroborated statements contained in their self-serving

affidavits should be rejected out of hand. While we

certainly concede that uncorroborated, or largely

uncorroborated, affidavits of cooperating co-conspirators

should be viewed with some skepticism, we see no basis for

adopting what would amount to a per se rule of unreliability.

We think the wiser course is to leave reliability decisions

and credibility determinations to the informed discretion of

the district court, while rigorously ensuring that defendants

have a sufficient opportunity to impeach tenuous evidence in

appropriate ways, such as through cross-examination or by the

introduction of evidence of their own.

Here, the district court provided Gagnon with a

fair process. The record shows that Gagnon had a full

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opportunity to tell the court his side of the story.

Moreover, during his cross-examination of Quinn, Gagnon

elicited the self-serving nature of Zahler's and Audette's

cooperation with the government. Gagnon also was able to

emphasize the almost complete absence of hard evidence

corroborating the statements made in the affidavits.

Gagnon makes a post hoc argument that he was

entitled to cross-examine Zahler and Audette; indeed, he

frames the argument as a constitutional challenge to his

sentencing, arguing that it violated the Sixth Amendment's

Confrontation Clause. Whatever merit there might be in the

contention that the Confrontation Clause applies in

situations such as this (and we take no position on the

contention here, but see United States v. Tardiff, 969 F.2d

1283, 1287 (1st Cir. 1992) ("in the usual case, a defendant's

Sixth Amendment right to confront the witnesses against him

does not attach during the sentencing phase")), Gagnon cannot

assert it in this appeal because he did not attempt to call

Zahler and Audette as witnesses at his sentencing, cf. United

States v. Garcia, 34 F.3d 6, 10 n.1 (1st Cir. 1994)

(sentencing challenges not first presented to the sentencing

court are ordinarily waived on appeal). Application of the

waiver rule is especially appropriate in this instance, where

the district court indicated on the record that it would have

allowed Gagnon to cross-examine Zahler and Audette had he so

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requested, see United States v. Gagnon, Cr. No. 93-61-02-JD,

order at 2 (D.N.H. Sept. 13, 1994), and where the court's

failure to order Zahler and Audette to appear cannot be

considered plain error under Fed. R. Crim. P. 52(b).

In the end, we see no clear error in the district

court's determination that Gagnon was involved in the Texas

transaction. We accordingly reject Gagnon's challenges to

the court's relevant conduct determination and to its two-

level enhancement for obstruction of justice.

III.
III.

For the reasons stated, we affirm the sentences of

defendants Mark Shrader and Ricky Gagnon.

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