[NOT FOR PUBLICATION]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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