[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1839
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD MORETTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Bernard Grossberg with whom Erin K. Kelly was on brief for
appellant.
George W. Vien, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.
June 11, 1997
Per Curiam. Richard Moretto was convicted in 1991 of
conspiracy to distribute cocaine, 21 U.S.C. S 846, and of
witness intimidation, 18 U.S.C. S 1512. At sentencing he was
found to be a career offender based on prior convictions,
U.S.S.G.
S
4B1.1,
and
sentenced to 210 months' imprisonment and
a term of supervised release. This court affirmed both the
conviction and sentence on direct appeal. United States v.
Elwell, 984 F.2d 1289 (1st Cir.), cert. denied, 508 U.S. 945
(1993).
Thereafter,
Moretto succeeded in having a state court set
aside two prior state convictions, undermining his career
offender status. He petitioned under 28 U.S.C. S 2255 to set
aside his original sentence. The district court agreed and,
after
further proceedings in June 1996, resentenced Moretto to
108 months' imprisonment, a term of supervised release, and a
fine of $12,500. Moretto now appeals from this new sentence,
arguing
that
the district court miscalculated the sentence and
improperly imposed a fine.
Although
Moretto's
appeal has been well briefed, we do not
think that the district court erred on any of the issues
presented in this court. The only difficult question is the
calculation of drugs attributed to Moretto, which became
decisive after the career offender label was lifted. The key
evidence was the testimony of Moretto's customer that over a
four
to
five
month
period, he had purchased between one and two
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ounces of cocaine from Moretto every week or other week "or
so."
Averaging, the district court found that it was fair to
attribute to Moretto 14 deliveries of 1.5 ounces apiece.
Twenty ounces (rounded down from 21) equates to 567 grams of
cocaine, which is well over the 500 gram minimum used to
determine Moretto's base offense level of 26. U.S.S.G.
S 2D1.1(c)(7). Moretto argues now, as he did in the district
court, that such averaging is forbidden by United States v.
Sepulveda
,
15
F.3d
1161,
1197-98 (1st Cir. 1993), cert. denied,
512 U.S. 1223 (1994).
In
United
States
v.
Webst
er, 54 F.3d 1, 6 (1st Cir. 1995),
this
court
upheld estimates "drawn from ranges with relatively
tight margins," distinguishing Sepulveda as involving much
wider ranges. Sepulveda itself made clear that the court was
not adopting a "per se rule" in favor of selecting the low
point
in
an
estimated range. 15 F.3d at 1199. We think there
is no magic rule to determine when a mid-range estimate seems
to make sense but the use of such an estimate here does not
appear to us to be clear error.
Further,
the
district
court attributed to Moretto, but did
not include in its calculus, an additional ten ounces of
cocaine provided to the witness by another member of the
conspiracy after Moretto had departed for prison. Since
Moretto had introduced the new seller to the witness for the
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specific purpose of continuing the sales, Moretto is
presumptively liable under the relevant conduct guideline for
foreseeable
transactions effectively arranged by Moretto while
still a working member of the conspiracy. U.S.S.G. S 1B1.3 &
comment.
n.2(c)(6). Even if the district court had arrived at
a low-end estimate of Moretto's own cocaine sales to the
witness, the inclusion of this additional ten ounces (283
grams) in the drug quantity calculus would have resulted in
sentencing
at the same base offense level as the court applied
below. Id. S 2D1.1(c)(7).
Moretto also objects to the district court's refusal to
treat him as a minimal or minor participant deserving a four-
or two-level downward adjustment in his favor on either of
these grounds. U.S.S.G. S 3B1.2. If a lesser member of the
conspiracy were automatically a minimal or minor participant,
Moretto
might
have
a
point; but we do not read the guideline in
that fashion. Here, Moretto played a substantial and
continuing role in the conspiracy, and the district court's
refusal
to
award him "minimal" or "minor" status was not clear
error.
The
district
court's refusal to depart downward, based on
diminished
capacity, U.S.S.G. S 5K2.13, was a factual judgment
not infected by legal error and therefore not subject to
review. United States v. Robles-Torres, 109 F.3d 83, 87 (1st
Cir. 1997). The two-level obstruction of justice adjustment
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was amply justified on the facts and provided for by the
guidelines. U.S.S.G. S 3C1.1. And, there being no evidence
whatever of vindictiveness, the court had authority to impose
a fine on resentencing even though none was imposed in the
initial sentence. North Carolina v. Pearce, 395 U.S. 711
(1969); see also Alabama v. Smith, 490 U.S. 794 (1989).
Affirmed.
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