United States v. Cardelli

July 27, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2109

UNITED STATES,

Appellee,

v.

STEPHEN D. CARDELLI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Cyr, Boudin and Lynch,
Circuit Judges.

Robert M. Napolitano on brief for appellant.

Jay P. McCloskey, United States Attorney, Jonathan R. Chapman,

Assistant United States Attorney, and F. Mark Terison, Assistant

United States Attorney, on brief for appellee.

Per Curiam. Defendant Stephen Cardelli appeals the

sentence imposed upon his convictions for federal tax evasion

and conspiring to possess with intent to distribute more than

five kilograms of cocaine. We affirm.

I.

In September 1992, a six-count indictment charged

Cardelli with two drug offenses and four counts of tax-

evasion. Cardelli subsequently entered into a plea agreement

under which he agreed to plead guilty to counts one and six

of the indictment. These respectively charged him with

conspiring to possess with intent to distribute cocaine in

violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A), and evasion

of federal income taxes in violation of 26 U.S.C. 7201.1

Cardelli entered his guilty plea on April 7, 1993. His

sentencing hearing was held on September 26, 1994.

At the sentencing hearing, Cardelli contested the drug

quantity used to calculate his sentence under the United

States Sentencing Guidelines (Nov. 1993). While Cardelli

could not recall the precise amount of cocaine that he sold,

he estimated it to be an amount below 15 kilograms.2 The

government then called DEA Agent John Bryfonski, the case

1. The government agreed to dismiss the remaining counts of
the indictment. Cardelli also agreed to cooperate with the
government's investigative efforts.

2. The Drug Quantity Table of the Guidelines, 2D1.1(c),
assigned a base offense level of 34 to offenses involving at
least 15 but less than 50 kilograms of cocaine.

agent on the investigation that led to Cardelli's indictment.

Consistent with the information in the presentence report

(PSR), Bryfonski testified that between May, 1988 and May or

June, 1989, Cardelli and four others participated in a

cocaine distribution ring that operated in the Portland,

Lewiston, and Auburn areas of Maine.3 Agent Bryfonski

testified that Dan and Randy Hicks and Pizzi each provided

consistent information to the government concerning the birth

and subsequent operation of the conspiracy. Thus, sometime

in May, 1988, the five conspirators met at Giobbi's

restaurant in Portland and agreed that Cardelli would supply

cocaine to Dan and Randy Hicks who, in turn, would distribute

it to Pizzi for retail sales.

Dan Hicks estimated that Cardelli supplied him with

approximately 25-30 kilograms of cocaine during the course of

the conspiracy. Randy Hicks, who often transported the

cocaine from Portland to Lewiston/Auburn, estimated that a

total of 20-25 kilograms was involved. Pizzi indicated that

he received approximately 35-40 kilograms during the course

3. The other individuals involved in the conspiracy were
of the conspiracy.4 Bryfonski also testified that Cardelli
Jonathan Singer, who supplied the cocaine to Cardelli, Dan
and Randy Hicks, a father and son team who obtained cocaine
from Cardelli, and Christopher Pizzi, who obtained cocaine
from the Hickses and distributed it to retail customers in
the Lewiston/Auburn area. Although Singer was never charged,
Dan and Randy Hicks and Christopher Pizzi pled guilty to drug
offenses arising from their conspiracy with Cardelli.

4. When asked how Pizzi knew that all of this cocaine came
from Cardelli, Bryfonski related that Pizzi was occasionally
present in Cardelli's business office when distribution
matters were discussed.

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himself had indicated during his debriefing sessions with

government agents that he had sold more than 15 kilograms.

Cardelli did not testify at his sentencing hearing. He

presented no evidence to controvert agent Bryfonski's

testimony. Defense counsel stated that he would like an

opportunity to cross-examine the coconspirators, implying

that their statements, particularly that of Dan Hicks, were

unreliable because the coconspirators had all been given

reduced sentences in return for implicating Cardelli.5

Relying on agent Bryfonski's testimony and the information in

the PSR, the district judge found that Cardelli was

responsible for at least 15 kilograms of cocaine and that his

corresponding base offense level was 34.6 While the court

acknowledged that agent Bryfonski's description of the

5. We note, however, that defense counsel neither subpoenaed
these witnesses, nor requested a continuance so that he might
secure their presence. Yet it was apparent from the PSR that
substantially more than 15 kilograms had been attributed to
Cardelli.

6. The PSR attributed a total of 29.4 kilograms to Cardelli.
That figure was based on evidence that Cardelli had
distributed a total of 27 kilograms to Dan Hicks for
Christopher Pizzi and evidence that Cardelli also had
provided an additional 2000 grams to one Phillip DiStefano
for distribution to Dan Hicks. The PSR also indicated that
Cardelli provided an additional 396.9 grams to another
individual (Phillip Gullifer). Absent evidence to the
contrary,"[f]acts contained in a presentence report
ordinarily are considered reliable evidence for sentencing
purposes." United States v. Morillo, 8 F.3d 864, 872 (1st

Cir. 1993).

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conconspirators' drug quantity estimates was hearsay, the

court found that this evidence was reliable because all three

coconspirators had indicated that at least 15 kilograms had

been distributed during the course of the conspiracy.7

Thus, starting with a

base offense level of 34, the court added 2 points based on

Cardelli's leadership role in the conspiracy and deducted 3

points based on his acceptance of responsibility to arrive at

a total offense level of 33. Applying criminal history

category II, the court determined that Cardelli's guideline

sentencing range was 151-188 months. The court then allowed

the government's motion for a downward departure based on

Cardelli's substantial cooperation (see U.S.S.G. 5K1.1) and

accepted the government's sentencing recommendation. The

court sentenced Cardelli to 108 months' imprisonment and 5

years of supervised release on the conspiracy count and to a

concurrent 60 months' imprisonment and 3 years of supervised

release on the tax evasion charge. Cardelli appeals this

sentence.

II.

Cardelli maintains that the district court made a

serious mistake by basing its drug quantity finding on the

7. The court specifically noted that it did not need to find
the precise number of kilograms that Cardelli had sold since
the court's finding triggered the base offense level for
crimes involving 15 to 50 kilograms. See n. 2, supra.

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hearsay statements of his coconspirators as described in

agent Bryfonski's testimony. Cardelli implies that these

descriptions are nothing more than "drug filtered memories"

that are all the more unreliable because they were not tested

by cross-examination. Cardelli contends that the district

court committed clear error by crediting this hearsay

evidence without requiring the coconspirators to testify in

court.

We review the district court's findings on drug quantity

only for clear error. See, e.g., United States v. Whiting,

28 F.3d 1296, 1304 (1st Cir.), cert. denied, 115 S. Ct. 328

(1994); United States v. Zuleta-Alvarez, 922 F.2d 33, 36-7

(1st Cir. 1990), cert. denied, 500 U.S. 927 (1991). We find

no error here. It is well established that, "[r]eliable
[r]eliable

hearsay can be used at sentencing." United States v.

Connolly, 51 F.3d 1, 5 (1st Cir. 1995)(holding that

codefendants' drug quantity estimates reported in PSR and

investigating officer's testimony were reliable hearsay where

estimates were "generally consistent"). Here, as in

Connolly, the three coconspirators consistently attributed

more than 15 kilograms of cocaine to Cardelli. This

consistency was sufficient corroboration that the

coconspirators' estimates were reliable enough to support the

court's conservative finding that Cardelli was responsible

for at least 15 kilograms. But for his own unsworn

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statements, Cardelli presented no evidence to the contrary.

The district court was not required to credit Cardelli's

contrary estimate, see Connolly, id., particularly where

Cardelli presented no evidence and conceded that he did not

recall the precise amount that he had sold.

We also do not find any error in the district court's

acceptance of the drug quantity estimates reported by agent

Bryfonski absent direct testimony from Cardelli's

coconspirators. Although the PSR clearly indicated that

these witnesses had knowledge of the amounts involved,

defense counsel did not ask for cross-examination until the

day of Cardelli's sentencing hearing. This was far too late.

See United States v. Zuleta-Alvarez, 922 F.2d at 36 (holding

district court did not err in denying request for cross-

examination made at sentencing hearing). We have reviewed

the record thoroughly and are satisfied that the district

court's quantity determination is supported by a

preponderance of the evidence. See United States v. Morillo,

8 F.3d at 871. Accordingly, the judgment of the district

court is affirmed.

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