United States v. Andrade

United States Court of Appeals
For the First Circuit

No. 95-1883

UNITED STATES OF AMERICA,

Appellee,

v.

LOUIS ANDRADE,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S.District Judge]

Before

Torruella, Chief Judge,

Cyr and Lynch, Circuit Judges.

Daniel J. Johnedis on brief for appellant.

Donald K. Stern, United States Attorney, and Ralph F. Boyd, Jr.,

Assistant United States Attorney, on brief for appellees.

August 26, 1996

LYNCH, Circuit Judge. Louis Andrade was convicted
LYNCH, Circuit Judge.

of possessing cocaine base with intent to distribute. He was

sentenced to 168 months in prison. He appeals from both his

conviction and his sentence.

Andrade's main argument is that the evidence seized

when the car in which he was riding was stopped by officers

from the Boston Anti-Gang Violence Unit should have been

suppressed. He says that the ostensible reason for the stop,

a traffic violation, was only a pretext to search the car in

hope of proving more serious charges. For these charges, he

says, there then existed no probable cause or reasonable

suspicion. His argument is foreclosed by the Supreme Court's

decision in Whren v. United States, 116 S. Ct. 1769 (1996),

decided after this case was initially briefed. He also

argues that the 14.21 grams of cocaine base with which he was

caught was so small an amount that it is unreasonable to

infer that he had the needed intent to distribute. This

argument is without merit. As for Andrade's challenges to

his sentence, his argument based on the distinction in

severity of sentences between crack cocaine and powder

cocaine is foreclosed. That distinction does not permit a

downward departure in sentence. There was no error in the

enhancement of his sentence for his attempt to shoot one of

the arresting officers.

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I

We recite the facts as the jury could reasonably

have found them. Andrade was a passenger in a car which made

an ill-considered and illegal U-turn in front of oncoming

traffic on Columbia Road in Boston on February 20, 1994. This

maneuver was observed at around 8:00 p.m by Officers Byrne

and Linskey of the Anti-Gang Violence Unit. Byrne and

Linskey were patrolling the area in an unmarked car driven by

Officer Freeman of the same unit. The Unit gathers

intelligence on gangs, leading to arrests of gang members in

the Roxbury, Mattapan, and Dorchester areas of Boston. The

Unit uses motor vehicle violations as a tool to investigate

gang activities.

The officers followed the car, and saw three adults

in the vehicle. They also saw that the car had a broken

taillight. As the car slowed to a stop in front of a

building on Seaver Street, the officers turned on their wig-

wag light and then approached the car on foot. Officer

Freeman identified himself and asked the driver, Sandra

Wright, for her license, while Officer Linskey detained the

front seat passenger, Terrell Andrade (Louis Andrade's

brother), who had emerged from the car. As Officer Freeman

shone a flashlight into the car, he saw, in the center of the

front seat, a plastic bag containing an off-white, rock-like

substance which looked like crack cocaine. He leaned into

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the car and picked up the bag and then signalled to the other

officers to handcuff Wright and Terrell Andrade.

Officer Freeman then went to open the right rear

passenger door, next to where Louis Andrade was sitting.

While Officer Freeman spoke to Andrade, he saw that Andrade

was sitting stiffly with his left hand behind his back.

Andrade ignored Officer Freeman's several commands that he

take his hand from behind his back. Drawing their service

pistols, Officers Freeman and Byrne yelled at Andrade to

remove his hand from behind his back. Andrade pulled his

left hand from behind his back and threw out, onto the

street, a bag containing a substance which appeared to be

crack cocaine. When Officer Freeman then attempted to

handcuff Andrade, Andrade lurched backward into the car and

tried to reach down to the floor. As Officer Freeman leaned

into the car toward Andrade, he suddenly saw a gun in

Andrade's hand. He screamed "gun," pushed himself away from

Andrade, saw a flash, and heard a noise. Believing Officer

Freeman had been shot (he was not), Officer Byrne fired a

single shot at Andrade, hitting him in the leg and ending the

confrontation.

Officer Linskey then pulled Andrade out of the car

and asked him where the gun was. Andrade denied having a

gun, but Sandra Wright yelled "check his ankles; check his

ankles." The officers did so and found the gun, not on Louis

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Andrade's ankle, but on the floor of the car near to where

Andrade had been sitting. A spent cartridge was found jammed

in the gun's chamber, indicating that the weapon had been

fired, and, fortuitously, that no additional rounds could be

fired. An upset Sandra Wright continued to scream "the dude

in the back shot at a cop; the dude in the back shot at a

cop; I could have gotten shot."

Accompanying Louis Andrade on the ride to the

hospital, Linskey observed Andrade attempting to remove

$260.00, in mostly ten and twenty dollar bills, from his

pants pocket. Linskey later found another plastic bag in the

same pocket. That bag, like the others, contained cocaine

base ("crack"); the two bags connected to Louis Andrade

totalled some 14.21 grams in weight. That amount of cocaine

is enough for 140 "jums" (doses) or "dime bags."

In a four count indictment, Andrade was charged

with possession with intent to distribute cocaine base, with

unlawful possession by a convicted felon of a firearm and

ammunition, with possession of a firearm bearing an

obliterated serial number, and with using a firearm during

and in relation to a drug trafficking crime. The jury

convicted on the drug possession count under 21 U.S.C.

841(a)(1) and deadlocked on the firearms counts. The

district court denied subsequent motions for judgment of

acquittal and for a new trial. Andrade was sentenced to 168

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months in prison and four years supervised release. After

sentencing, the court dismissed the firearms counts on the

government's motion.

II

Andrade makes three attacks on his conviction. He

argues that the trial judge erroneously denied his motion to

suppress the evidence seized during the "warrantless,

pretextual traffic stop of the car in which defendant was a

passenger." He also says that the evidence of intent to

distribute the drugs was insufficient to support a

conviction, and that the thinness of that evidence at least

entitles him to a new trial. Although ably briefed, none of

these arguments prevails.

A. The Suppression Motion

Andrade filed a motion to suppress the evidence

seized during the car stop on the theory that the stop was

pretextual. The district court held an evidentiary hearing

and determined the stop was not pretextual but was made, as

the officers said, to investigate why the car had made a

"sharp, harsh U-turn" into oncoming traffic. The court later

modified its ruling to note that there was evidence to

suggest a second motive for the stop, but that under the

objective test of United States v. Miller, 589 F.2d 1117 (1st

Cir. 1978), cert. denied, 440 U.S. 958 (1979), any mixed

motive was irrelevant. Our review of the ultimate conclusion

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as to whether the Fourth Amendment was violated is de novo.

Ornelas v. United States, 116 S. Ct. 1657, 1662 (1996).

In support of his claim that the motion to suppress

should have been granted, Andrade relies on a theory firmly

rejected by the Supreme Court in Whren. In Whren, the

Supreme Court affirmed the denial of a motion to suppress

drugs seized when the police stopped a car for a traffic

violation. The Court held that the temporary detention of a

motorist upon probable cause to believe the traffic laws have

been violated does not transgress the Fourth Amendment's

prohibition on unreasonable seizures, even if the officer

would not have stopped the motorist absent some additional

law enforcement objective. Whren, 116 S. Ct. at 1774.

Because the Fourth Amendment allows certain actions to be

taken in certain circumstances, regardless of motives, the

Court rejected any inquiry into the officers' subjective

intent or into what a "reasonable officer" would have done in

similar circumstances. Id. at 1775. The Court thus

foreclosed any argument that ulterior motives can invalidate

an otherwise justified traffic stop. Id. at 1774.

Here, the illegal U-turn plainly provided probable

cause to stop the car for violating the traffic laws, and

Andrade does not argue otherwise. Under Whren, the inquiry

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stops there, as does Andrade's appeal on this point.1 Id.;

see also United States v. Abernathy, 83 F.3d 17, 19 (1st Cir.

1996) (officers on undercover investigatory narcotics detail

may lawfully make traffic violation stop).

B. Evidence of Intent to Distribute

Andrade's remaining attacks are premised on his

contention that the evidence did not show that he had an

intent to distribute the cocaine base, even if the evidence

were sufficient to show that he did possess it for personal

use. He challenges the district court's denial of both his

Rule 29 motion for a judgment of acquittal and his Rule 33

motion for a new trial.

1. Motion for Judgment of Acquittal

In a sufficiency challenge, we determine whether,

drawing all reasonable inferences in favor of the

prosecution, a rational jury could find guilt beyond a

reasonable doubt. United States v. Luciano-Mosquera, 63 F.3d

1. In his reply brief, Andrade argues that the potential for
discriminatory treatment of members of minority communities
requires courts to invalidate pretextual traffic stops. He
suggests that circumstantial evidence, particularly Officer
Byrne's description of the occupants of the car as "black,"
indicates that racial animus was at work here. This line of
argument was rejected in Whren, where the Supreme Court

pointed out that "the constitutional basis for objecting to
intentionally discriminatory application of the laws is the
Equal Protection Clause, not the Fourth Amendment." Whren,

116 S. Ct. at 1774. In any event, we need not pursue this
issue further; it was not raised in Andrade's principal brief
to this court and is therefore waived. See United States v.

Edgar, 82 F.3d 499, 510 (1st Cir.), petition for cert. filed,

65 U.S.L.W. 3110 (U.S. July 16, 1996)(No. 96-5082).

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1142, 1149(1st Cir. 1995), cert. denied, 116 S. Ct. 1879

(1996).

It would, of course, be unusual for there to be

direct evidence of a defendant's intent to distribute the

drugs in his possession where the defendant is not observed

dealing drugs but instead is merely found with the drugs. As

a result, juries, and courts, have to decide what inferences

may be reasonably drawn from the available circumstantial

evidence. See United States v. Echeverri, 982 F.2d 675, 678

(1st Cir. 1993). That evidence may include information about

the amounts and types of the drugs possessed and about the

accompanying accoutrements, such as the sums of money also

found, whether there is drug weighing, cutting, and packaging

paraphernalia, whether a weapon is used, and the like. See,

e.g., id. at 678-79 (considering layout of defendant's

apartment, amount of cocaine found, and the presence of a

scale and a ledger as corroborative of intent).

To support his insufficiency argument, Andrade

relies upon United States v. Valerio, 48 F.3d 58 (1st Cir.

1995). There, this court vacated a conviction for possession

of powder cocaine with intent to distribute because the

evidence was insufficient to prove that the defendant knew

about the large quantities of cocaine which were hidden in an

apartment in which she was a short-term guest. Id. at 64.

The court found that the defendant could only have been found

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to be aware of 14.83 grams of cocaine hidden in her baby's

shoe; this was "not large enough" a quantity to support an

inference of distributive intent. Id.2

This is a different case and we have no trouble

affirming the jury verdict. To start, this case involves not

cocaine powder, but cocaine base or "crack." The cases on

which Andrade relies involve powder cocaine (cocaine

hydrochloride), not crack cocaine (cocaine base) which is

more potent and is sold in much smaller doses. The

legislative history of the federal drug laws repeatedly

indicates that crack's greater potency is a primary reason

that offenses involving crack receive higher penalties than

do those involving similar amounts of powder cocaine. See,

e.g., United States v. Buckner, 894 F.2d 975, 978-80 (8th

Cir. 1990)(compiling statements of members of Congress and

hearing testimony of drug abuse experts). For example, when

2. Andrade also draws our attention to United States v.

Martinez, 44 F.3d 148 (2d Cir. 1995), in which a panel of the

Second Circuit (over Judge Walker's dissent) initially found
the evidence of intent to distribute insufficient where the
defendant possessed 3.5 grams of powder cocaine, as well as
one-half ounce of "cut," a one gram scale, and a gun. Id. at

151. However, the panel later reconsidered its disposition
of the case and decided to affirm Martinez's conviction
because "any amount of drugs, however small, will support a
conviction when there is additional evidence of intent to
distribute." See Martinez v. United States, 54 F.3d 1040,

1043 (2d Cir.), cert. denied, 116 S. Ct. 545 (1995). The

"cut," the scale, and particularly the firearm, which "by
itself provided strong evidence of intent to distribute,"
supported the inference that the defendant was engaged in
drug trafficking. Id.

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Congress disapproved proposed Sentencing Guidelines

amendments that would have equalized the penalties for

offenses involving crack and powder cocaine, the House Report

noted the "unique nature of the crack cocaine trade, which

often entails trafficking in much smaller quantities than

with powder cocaine." H.R. Rep. No. 272, 104th Cong., 1st

Sess. 3 (1995). Thus, whether or not 14.21 grams is a

"small" amount of powder cocaine, it is not a small amount of

crack cocaine.

Nor was unadorned evidence of amount all that the

jury had to go on. The government's expert witness, Sgt.

Kevin Buckley, who had been involved in more than 1000 drug

investigations, testified that the amount of crack cocaine

Andrade possessed could make more than 140 "jums," with a

street value of at least $1400; that he had never seen a mere

user with more than 8-10 "jums" at a time; that mere users

typically use all of their cash to feed their habit; that a

mere user usually smokes all of the crack he can obtain right

away; and that, in Boston, crack is usually sold in $10 and

$20 bags. Also, Andrade had no implements with him to smoke

the crack. This was enough, even without consideration of

the presence of the firearm. The jury had ample evidence

from which to draw the inference of intent to distribute.

Cf. United States v. Bergodere, 40 F.3d 512, 518 (1st Cir.

1994)(affirming intent finding where total value of heroin

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seized was $1500 and gun and drug packaging materials were

found), cert. denied, 115 S. Ct. 1439 (1995). The inferences

drawn by the jury were thus proper and reasonable, and we

affirm the district court's denial of Andrade's Rule 29

motion.

2. Motion for a New Trial

Andrade asks that, even if we find the evidence

sufficient to sustain the jury verdict, we grant him a new

trial in the interest of justice. See Fed. R. Crim. P. 33.3

However, "the decision to grant or deny a new trial is

committed to the sound discretion of the district court."

United States v. Soto-Alvarez, 958 F.2d 473, 479 (1st Cir.),

cert. denied, 506 U.S. 877 (1992). Thus, we will affirm the

district court's denial of a new trial unless there has been

a "manifest abuse of discretion." United States v. Tibolt,

72 F.3d 965, 972 (1st Cir. 1995), cert. denied, 116 S. Ct.

2554 (1996); see also 3 Charles A. Wright, Federal Practice &

Procedure: Criminal 559 (2d ed. 1982)(appellate court

3. The government argues that Andrade's motion for a new
trial was untimely, and that the court thus lacks
jurisdiction to consider it. However, on December 22, 1994,
just two days after the guilty verdict, defendant's counsel
filed a motion for leave to file a Rule 33 motion at a later
date; the district judge allowed that motion. Rule 33
expressly permits the court to extend the time limit for
filing a motion. Motions shall be made "within 7 days after
verdict or finding of guilty or within such further time as

the court may fix during the 7-day period." Fed. R. Crim. P.

33 (emphasis added). Andrade's Rule 33 motion was thus
timely, and we reach the merits of this claim.

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"properly defers" to trial court on motion for a new trial).

The remedy of a new trial is rarely used; it is

warranted "only where there would be a miscarriage of

justice" or "where the evidence preponderates heavily against

the verdict." United States v. Indelicato, 611 F.2d 376, 386

(1st Cir. 1979)(internal quotations omitted). Andrade does

not present any new evidence or point to any grave errors by

the trial judge, but merely reiterates his claim that the

evidence of intent was thin. As we find that the evidence in

the record fully supported the jury's verdict, neither of the

necessary conditions for a new trial is satisfied.

Accordingly, the district court did not abuse its discretion

when it denied Andrade's Rule 33 motion.

III

Andrade's appeals from his sentence are also

without merit. Andrade's first claim is that because there

is a disparity between the punishments for crack and powder

cocaine, the trial judge erred in not departing downward to

the comparable base offense level for powder cocaine. He

argues that the recent report of the Sentencing Commission,

which recommended a modification of this disparity,

demonstrates that there are factors not adequately considered

by the current Guidelines. See U.S.S.G 5K2.0, p.s. The

district court agreed with Andrade that the disparity was

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"unfair" and that, in the right circumstances, a departure

based on the Commission findings would be justified. Here,

however, the district judge found that were she to depart

downward, Andrade's extensive criminal record would then

require a substantial compensatory upward departure.

Accordingly, the court set Andrade's base offense level at

26, the required level under the Guidelines for cases

involving between five and twenty grams of cocaine base. See

U.S.S.G. 2D1.1(c)(7).

The district court thus rejected Andrade's request

for a departure on a discretionary, not a legal, basis.

While in other circumstances, this court lacks jurisdiction

to review the discretionary decisions of the sentencing

judge, United States v. Sanchez, 81 F.3d 9, 10 (1st Cir.),

petition for cert. filed (U.S. July 8, 1996)(No. 96-5082), we

would reject Andrade's appeal here regardless. As we have

held, the Sentencing Commission's findings with regard to the

sentence disparity between crack and powder cocaine are "not

a ground for departure under 5K2.0." Id. at 11; see also

United States v. Camilo, 71 F.3d 984, 990 (1st Cir.

1995)(noting congressional rejection of Guidelines amendments

that would have eliminated disparity), cert. denied, 116 S.

Ct. 1555 (1996).4 The district court thus had no discretion

4. Andrade emphasizes that Congress, when rejecting the
proposed equalization of crack and powder cocaine penalties,
invited the Sentencing Commission to come up with an

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to depart downward based on the sentencing distinction

between crack and powder cocaine. This court has also held

the distinction to be constitutional. United States v.

Singleterry, 29 F.3d 733, 739-41 (1st Cir.), cert. denied,

115 S. Ct. 647 (1994).

Andrade also attacks the district court's decision

to increase his sentence by three levels for his aggravated

assault on a police officer. See U.S.S.G. 3A1.2(b).

Andrade contends that the presentence report finding that

Andrade "retrieved a gun, which he had earlier attempted to

conceal . . . and discharged it in the direction of Officer

Freeman" was unreliable and unsupported by trial evidence.

Andrade argues that the district judge erred in relying on

that report and on unreliable trial evidence.

In a sentencing appeal, we review the district

court's findings of fact for clear error, giving due regard

to the district court's credibility judgments. 18 U.S.C.

3742(e). Here, the district judge's finding that Andrade

assaulted Officer Freeman was clearly based on her own

assessment of the evidence presented at trial. Her findings

on this point were explicit:

alternative proposal. However, as has been observed, "a
direction to study a matter, even from Congress, cannot be
said to change the state of the law (here, the legal fact
that the Commission has considered the 'circumstance'-- the
difference between crack and powder cocaine)." United States

v. Anderson, 82 F.3d 436, 440 (D.C. Cir. 1996).

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I saw the testimony, I saw the witnesses.
I heard what Officer Freeman said. I
listened to him with 25 years of
experience behind me. And I believe him.

Andrade points to nothing in the record that renders these

findings clearly erroneous. As the evidence, including

Wright's exclamation that "that dude shot at a cop," supports

a finding of aggravated assault on an officer, we affirm the

three-level enhancement.

Andrade's conviction and sentence are affirmed.

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