Elwell v. United States

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2360

DAVID ELWELL,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

Before

Stahl, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Joseph K. Kenyon with whom Stephen Weymouth was on brief for

appellant.
George W. Vien, Assistant U.S. Attorney, and Donald K. Stern,

United States Attorney, U.S. Department of Justice, was on brief for
appellee.

September 9, 1996

CAMPBELL, Senior Circuit Judge. David Elwell

appeals from the denial by the district court of his motion

under 28 U.S.C. 2255 to vacate, set aside or correct the

sentence it imposed following his conviction for drug-related

offenses. Elwell contends, inter alia, that the court made

errors in determining the amount of cocaine to attribute to

him for sentencing purposes.

I. Procedural and Factual History
I. Procedural and Factual History

After a jury trial in the district court, Elwell

was convicted on February 15, 1991, of one count of

conspiracy to distribute cocaine, in violation of 21 U.S.C.

846; two substantive counts of possession of cocaine with

intent to distribute, in violation of 21 U.S.C. 841(a)(1);

and one count of willfully subscribing to a false income tax

return, in violation of 21 U.S.C. 7206(1). He was

sentenced to 78 months imprisonment concurrently on each of

the drug counts, and 36 months on the tax count, to be served

concurrently. Elwell took a direct appeal to this court,

which affirmed the judgment of the district court. United

States v. Elwell, 984 F.2d 1289 (1st Cir. 1993), cert denied,

113 S. Ct. 2429 (1993). He then brought the present motion

under 28 U.S.C. 2255. This was denied in a comprehensive

opinion by the same judge who had sentenced him. Elwell now

appeals.

The primary witness against Elwell at his criminal

trial was Mark Polito, a cocaine addict turned government

informant. Polito testified to having purchased "an ounce--

two ounces" from Richard Moretto every other week or so over

a period of four to five months in the spring of 1988. When

Moretto had to report to prison in or around April 1988, he

introduced Polito to his distributor, Hobart Willis. Willis,

in turn, put Polito in touch with Elwell, who managed Willis'

"northern territory." Elwell supplied Polito's cocaine needs

throughout the summer of 1988. Polito eventually fell into

debt to Elwell because of his cocaine habit and, under

pressure for payment, began to cooperate with law enforcement

authorities. While cooperating, Polito made two more cocaine

purchases from Elwell, on November 17, 1988, and December 19,

1988. In a tape recorded statement, Elwell stated that

Polito owed him "twenty-four somethin'."

Elwell's conviction was for the final two

purchases, which amounted to a total of three ounces of

cocaine. At sentencing, the district court found that Elwell

had also distributed an additional 20 ounces of cocaine to

Polito during the course of the previous summer of 1988. The

court, therefore, attributed sales of over 500 grams to him

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for purposes of determining the Base Offense Level.1 Polito

testified at trial that he had purchased "18, maybe 20"

ounces of cocaine from Elwell during the summer. At

sentencing, the judge stated, among other remarks,

What that [the rule allowing the
court to consider relevant information
without regard to its admissibility under
the rules of evidence] means to me is
that I can review all of the material I
have. I can assess the credibility of
Mr. Polito, the evidence which tended to
corroborate Mr. Polito or contradict him,
the testimony of other participants, such
as Mr. Willis--not of the testimony, but
of the evidence that pertained to Mr.
Willis and Mr. Willis's connection with
Mr. Elwell, and make a decision as to the
disputed findings of fact. I heard that
evidence.
Mr. Polito testified, in summary,
that he bought one or two ounces, one or
two ounces every week or every two weeks
from Mr. Moretto over a period of four to
five months. I calculated that had to be
about 14 purchases, not every week but
for a period of 14 weeks, not 20 weeks
but 14 weeks of one to two ounces. I
took the one to two ounces to be one and
a half ounces, and I added 14 purchases
to one and and [sic] a half ounces to 20
ounces. That's a conclusion, a factual
conclusion I made.

1. United States Sentencing Guidelines 1B1.3(a)(2)
provides that in determining the Base Offense Level, the
court shall include acts and omissions committed by the
defendant as part of the same course of conduct or common
scheme or plan as the offense of conviction when, inter alia,
the offense level is determined largely on the basis of the
total quantity of a substance involved. See U.S.S.G.

3D1.2(d). U.S.S.G. 2D1.1(c)(7) provides for a Base Offense
Level of 26 for unlawfully selling between 500 grams and two
kilograms of cocaine in a continuing criminal enterprise.

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Appellant relies on the second paragraph of the

judge's above statement to argue (1) that the judge

improperly included cocaine sold by a co-conspirator before

Elwell joined the conspiracy to arrive at the 23-ounce

figure; and (2) that the judge improperly used averages to

calculate the amount of cocaine sold by Elwell in purported

violation of new case law, entitling Elwell to reopen this

court's previous affirmance on direct appeal of his sentence.

Appellant further contends that the district court should

have scrutinized more closely Polito's drug quantity

estimates because of Polito's status as an addict-informant,

and that appellant should receive reductions in his sentence

for being a "minor participant" in the criminal activity in

which he was involved and for "acceptance of responsibility"

under U.S.S.G. 3B1.2(b) and 3E1.1.2

II.
II.

A. Inclusion of Cocaine Sold by a Co-conspirator

In arguing that the judge improperly enlarged

Elwell's offense level by counting cocaine sold earlier by a

co-conspirator, appellant relies upon a November 1, 1994

2. The United States Sentencing Guidelines provide for a
two-level decrease in the defendant's Base Offense Level if
he or she was a minor participant in the criminal activity.
The Guidelines also provide for a two-level decrease if the
defendant clearly demonstrates acceptance of responsibility
for his or her offense.

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amendment to the Application Notes of U.S.S.G. 1B1.3 which

states, "A defendant's relevant conduct does not include the

conduct of members of a conspiracy prior to the defendant

joining the conspiracy, even if the defendant knows of that

conduct. . . " U.S.S.G. 1B1.3, comment. (n.2).

The government correctly points out, however, that

the total amount of cocaine counted by the district court as

relevant conduct for sentencing purposes did not include

amounts sold earlier to Polito by Moretto. Rather the court

arrived at its finding that Elwell had sold 20 ounces in

addition to the three ounces underlying his conviction from

Polito's sworn testimony of having purchased "18, maybe 20"

ounces of cocaine from Elwell in the summer of 1988.3 Hence

there is no occasion to consider the law relative to a co-

conspirator's drug sales.

It is true, as earlier mentioned, that the court

also referred to Polito's testimony about cocaine purchases

from Moretto earlier that spring, over a four to five month

period. But the judge's language in doing so suggests that

the court was discussing the prior transactions simply as

part of its assessment of the overall credibility of Polito's

3. As this court pointed out on direct appeal, since even
the low-end figure of 18 ounces is 504 grams, exceeding the
Guidelines' 500 gram minimum for the sentence in issue, the
court's finding of 20 ounces rather than 18 is of no
consequence. Elwell, 984 F.2d at 1297. Elwell makes no

argument based on the two-ounce difference.

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testimony, comparing the amounts earlier purchased from

Moretto with the "18, maybe 20" ounces Polito claimed to have

bought from Elwell within a comparable time frame. This

interpretation dove-tails with the district court's finding

at sentencing, "I conclude that Mr. Elwell distributed at

least 20 ounces of cocaine to the witness . . . during the

summer of 1988 . . . " (Emphasis supplied). Had the court

meant that some or all of the 20 ounces came from Moretto, it

would not have said that "Mr. Elwell distributed at least 20

ounces . . .", nor would it have referred to sales in the

summer, rather than the spring, of 1988.

That this was what the court meant was confirmed by

the trial judge himself in his opinion disposing of Elwell's

motion under 2255. The judge flatly stated, "I was

referring to the twenty ounces which Elwell sold directly to

Polito." This court earlier reached the same conclusion when

deciding Elwell's direct appeal, i.e. we stated that the

district court's findings were based upon cocaine Elwell sold

during the summer of 1988. Elwell, 984 F.2d at 1297-98.

As the district court rested its finding of 23

ounces on amounts sold by Elwell in the summer and fall, not

amounts sold earlier to Polito by another supplier, we see no

merit in appellant's contention that the district court

violated the November 1, 1994 amendment to the Application

Notes of U.S.S.G. 1B1.3.

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Appellant also seems to argue that the events which

occurred before he personally sold drugs to Polito may not be

considered even for background corroborative and credibility

purposes. We disagree. United States Sentencing Guidelines

6A1.3(a) provides, in part, "In resolving any reasonable

dispute concerning a factor important to the sentencing

determination, the court may consider relevant information

without regard to its admissibility under the rules of

evidence applicable at trial, provided that the information

has sufficient indicia of reliability to support its probable

accuracy." While the Moretto sales, standing alone, would be

inadequate to establish the amounts Elwell later sold, they

have some general relevance to Polito's testimony of the

specific amounts he purchased from Elwell, since they help

show the pattern of Polito's purchases during the year.

It is commonplace that a conspiracy's past

activities may be considered at sentencing for various

purposes, e.g., to determine the volume of drugs a late-

joining co-conspirator reasonably foresaw would be sold by

the conspiracy in the future. United States v. O'Campo, 973

F.2d 1015, 1025-26 & 1024-25 n.9 (1st Cir. 1992). See also

United States v. Carreon, 11 F.3d 1225, 1236 (5th Cir. 1994);

United States v. Madkins, 14 F.3d 277, 279 n.10 (5th Cir.

1994); United States v. Patriarca, 912 F. Supp. 596, 606, 610

(D. Mass. 1995). Here, the frequency and quantity of drugs

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previously purchased by Polito, before Elwell began to supply

him, helped verify the amounts later said to have been

furnished by Elwell, since it might be thought that Polito's

requirements and habits would remain somewhat consistent over

time.

B. The Use of Averages to Calculate Amounts

Elwell complains that the district court wrongly

used "averaging" in holding him responsible for the sale of

23 ounces. He bases this argument on the district court's

quoted review of the sales by Moretto to Polito in which the

judge indicated that the amounts sold each time averaged out

to one and one-half ounces. Elwell also finds fault with the

court's estimates of the frequency of Moretto's sales.

As already pointed out, however, the district

court's finding of 23 ounces does not rest upon Moretto's

previous sales to Polito but rather is based on Polito's

testimony that he had purchased "18, maybe 20" ounces of

cocaine from Elwell in the summer of 1988 (and, in addition,

on evidence of the three ounces sold by Elwell to Polito in

November and December of that year). This evidence of summer

sales was not the product of averaging nor did it call for

averaging. It is true that the court also made certain

inferences about the earlier transactions with Moretto,

including the average quantities purchased, but as we have

indicated, the court did so merely to assist in its overall

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evaluation of Polito's testimony concerning Elwell's own

sales to him, upon which the finding of 23 ounces was based.

Elwell argues also that the deductions the court

drew from the Moretto evidence were flawed, leading it to

attribute too much cocaine to this earlier period, and to err

in believing that these previous sales corroborated the

quantities attributed to Elwell in the latter period. The

short answer to this argument is that Elwell is not entitled

on collateral review to relitigate issues raised on direct

appeal, absent an intervening change in the law. Davis v.

United States, 417 U.S. 333, 342 (1974) (holding that a

2255 hearing is permitted on an issue previously addressed on

direct appeal when there has been an intervening change in

the law). Cf. Singleton v. United States, 26 F.3d 233, 240

(1st Cir. 1993) ("'[I]ssues disposed of in a prior appeal

will not be reviewed again by way of a 28 U.S.C. 2255

motion.'" (quoting Dirring v. United States, 370 F.2d 862,

864 (1st Cir. 1967))), cert. denied, 115 S. Ct. 517 (1994);

United States v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990) ("We

note that certain other claims raised in the 2255 motion

were decided on direct appeal and may not be relitigated

under a different label on collateral review."). Likewise,

Elwell is not entitled to relitigate issues that could have

been raised on direct appeal, but were not, absent a showing

of cause excusing the default and actual prejudice resulting

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from the error of which he complains. See United States v.

Frady, 456 U.S. 152, 167-68 (1982); Suveges v. United States,

7 F.3d 6, 10 (1st Cir. 1993) (holding that a party must show

cause and prejudice to raise an objection not argued on

direct appeal in a 2255 motion (citing Frady)). Elwell

vigorously argued on direct appeal that the 20 ounces

attributed to him was unsupported and too high; this court

considered those arguments expressly, and to the extent he

now seeks to repeat and embellish these contentions, he has

failed to show cause for being allowed to do so.

In particular, there is nothing to Elwell's

argument that two cases decided by this court, United States

v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), cert. denied, 114

S. Ct. 2714 (1994) and United States v. Welch, 15 F.3d 1202

(1st Cir. 1993), cert. denied, 114 S. Ct. 1161 and 114 S. Ct.

1863, have so changed the law since Elwell's direct appeal as

to warrant the reopening of our earlier affirmance of

Elwell's sentence on direct appeal.

This court did not rule in Sepulveda and Welch that

averaging was no longer permissible. We merely held in the

circumstances of those cases that the particular calculations

used, based on very broadly based averages, were

insufficiently precise to determine the amount of drugs used.

In later cases, where averages were taken from ranges with

tighter margins, we accepted their use. See, e.g., United

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States v. Webster, 54 F.3d 1, 5-6 (1st Cir. 1995). In the

present case, unlike Sepulveda and Welch, the main evidence

upon which the court relied Polito's testimony as to the

amounts Elwell sold him in the summer of 1988 did not

involve averaging at all. The averaging employed related

merely to Moretto's earlier sales, discussed for purposes of

analogy only. The one and a half ounce average, moreover,

fell arguably within tight margins, although we need not get

into this in order to conclude that Sepulveda and Welch did

not alter the law applicable on direct appeal. This being

so, Elwell may not relitigate collaterally his challenge to

the sufficiency of the evidence on which his Base Offense

Level rests. See Singleton, 26 F.3d at 240.

C. Reliance on Addict-Informant Witnesses

In his third claim of error, Elwell contends that

the district court should have more carefully scrutinized

Polito's testimony because of his status as an addict-

informant.

This argument was litigated and rejected in

Polito's direct appeal. Elwell, 984 F.2d at 1297-98. As

explained in Part B, above, relitigation of the issue is thus

barred unless there has been an intervening change in the

law. See Singleton, 26 F.3d at 240.

In support of his contention that there has been

such a change, Elwell points to several recent decisions in

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other circuits which have imposed a "heightened standard of

scrutiny" on testimony by drug addicts who are cooperating

with the government. See United States v. Beler, 20 F.3d

1428, 1435 (7th Cir. 1994); Miele, 989 F.2d at 666-68; United

States v. Simmons, 964 F.2d 763, 776 (8th Cir. 1992), cert.

denied, 506 U.S. 1011 (1992); United States v. Robison, 904

F.2d 365, 371-72 (6th Cir. 1990), cert. denied, 498 U.S. 946

(1990). See also United States v. Richards, 27 F.3d 465, 469

n.2 (10th Cir. 1994) (noting this line of cases but

expressing neither agreement nor disagreement). But see

United States v. Browning, 61 F.3d 752, 755 n.2 (10th Cir.

1995) (distinguishing the Simmons line of cases on their

facts as dealing only with addict-informants whose testimony

contradicted itself and/or who admitted to hazy memories).

Whether or not the law can be said to have changed

in other circuits, this circuit has not adopted such a rule

of heightened scrutiny, nor are we aware of any recent

congressional enactments or pronouncements by the Supreme

Court making an alteration in the law in such instances. In

Webster, we allowed the district court to base its sentence

on the testimony of a witness who was "an admitted perjurer,

a drug user, and a turncoat who received a substantially

reduced sentence for implicating others." Webster, 54 F.3d

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at 5. We concluded that the trial judge was able to make the

requisite credibility assessments concerning that witness.4

D. Minor Participant and Acceptance of Responsibility

Reductions

In appellant's fourth point of error, he argues

that, should he prevail on any of his previous three points

of error, he should receive a reduction in his sentence for

being a minor participant in the conspiracy and for accepting

responsibility for the amount of cocaine he distributed. We

find little merit in these arguments on their face, but since

we reject Elwell's first three points of error, they are in

any case moot.

Affirmed.

4. We add that the mere movement of one or more other
circuits towards heightened scrutiny in certain cases would
not amount to intervening new law which would allow Elwell to
relitigate an issue already decided by this court on direct
appeal. Both Simmons and Robison, upon which Elwell in part

relies, were, moreover, decided before the direct appeal in
this case was argued.

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