United States v. Castro

United States Court of Appeals
For the First Circuit
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No. 01-1850

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY CASTRO,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

____________________

Before

Lynch and Lipez, Circuit Judges,
and Woodlock,* District Judge.

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Owen S. Walker, Federal Defender Office, for appellant.
David Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for appellee.

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* Of the District of Massachusetts, sitting by designation.
 February 4, 2002
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 LYNCH, Circuit Judge. After pleading guilty to

conspiring to possess crack cocaine with intent to distribute,

appellant, Anthony Castro, was sentenced to 87 months, or more

than seven years, in prison. Castro concedes that he

participated in several crack deals, but objects to his 87-month

sentence on two grounds. First, he argues that the district

court incorrectly calculated the drug quantity on which his

sentence was based because, in one of the deals involving 11.6

of the 35.039 grams of crack attributed to him, he acted to

assist the buyer, not the seller, and so he says he cannot

lawfully be sentenced for the distribution of the 11.6 grams.

Second, Castro objects to the district court's consideration of

his probation sentence for a prior state crime when calculating

his criminal history. Castro says that the alternative to this

state probation sentence was not incarceration and so, under the

federal guidelines, it is not "probation" of the type that can

affect one's criminal history.

We reject the argument that one who acts as the buyer's

agent in facilitating a drug deal may not have the drug quantity

from that sale attributed to him as relevant conduct. Under

U.S.S.G. § 1B1.3(a)(1)(A) and 21 U.S.C. § 846, Castro may be

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punished not merely for selling drugs, but more generally for

facilitating their distribution and delivery. We also reject

the second argument, based on Castro's state probation sentence,

as inconsistent with the clear language of U.S.S.G. §

4A1.2(c)(1)(A), which counts any prior sentence of probation of

at least one year. Finding Castro's arguments to be meritless,

we affirm his sentence.

I.

This case involves the unfortunate story of Anthony Castro

who, along with his grandmother, his father, and others,

participated in distributing crack cocaine to undercover DEA agents in

Fitchburg, Massachusetts. Castro became addicted to the drugs he

distributed. During a several month period in 1999, Castro was

involved in at least twelve crack sales to undercover federal agents.

Castro's role differed from sale to sale; in some cases he was the

primary seller, in other cases he merely provided assistance by

introducing the agents to other sellers or by acting as an

intermediary.

One sale in particular is important to Castro's argument.

On October 20, 1999, Castro was involved in the distribution of what

turned out to be 11.6 grams of crack. Castro says that, by October, he

was no longer dealing crack. Instead, he had turned to using the drug

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and had become severely addicted. Castro admits that he participated

in the October 20 distribution, but claims his participation was

limited to assisting the buyer (a federal agent, unbeknownst to Castro)

find the best priced crack in town. (Castro was attempting to make

a small profit by charging the buyer a fee in return for

providing him with connections to dealers offering the lowest

prices.) In the process of doing so, Castro was present during a

transaction between the undercover agent and Robert Rodriguez, a seller

with whom Castro admits he was at one point allied. During this

transaction, Castro translated price and quantity terms from Spanish to

English and from English to Spanish, thereby facilitating the

distribution of 11.6 grams of crack.

A grand jury eventually returned a number of

indictments, most of which charged multiple defendants with

numerous counts of drug distribution in Fitchburg. After Castro

entered into a plea agreement, the government dismissed the

indictments against him, and he pled guilty to a one-count

superceding information charging him with conspiring to possess

crack cocaine with intent to distribute in violation of 21

U.S.C. §§ 841(a)(1) and 846.

When Castro was sentenced for this crime, the district

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court held him accountable for 35.039 grams of crack, which

under U.S.S.G. § 2D1.1(c)(5) yields a base offense level of 30.

After a three-point reduction for acceptance of responsibility,

U.S.S.G. § 3E1.1, Castro had an offense level of 27. The district

court awarded Castro two criminal history points for two prior

convictions. One of these two prior convictions was for disorderly

conduct, an offense for which Castro was sentenced to one year of

probation. The district court awarded Castro an additional two points,

under U.S.S.G. § 4A1.1(d), for committing the instant offense while on

probation. Four criminal history points translate to a criminal

history category of III and, with an offense level of 27, a

sentencing range of 87 to 108 months. Because Castro was

accountable for 35.039 grams of crack, just over the 35-gram

cut-off, the court sentenced him to 87 months, which was the

lowest available sentence within the guidelines range.

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 II.

Our review of legal questions concerning the district

court's application of the guidelines is de novo. United States

v. Caraballo, 200 F.3d 20, 24 (1st Cir. 1999). Our review of

factual findings is for clear error. Id.

A.

First, Castro argues that the drug quantity on which

his sentence was based was incorrectly calculated because it

included 11.6 grams from the October 20 transaction. Castro

claims that during that transaction, he intended solely to help

the buyer, a federal agent, rather than the seller, Rodriguez.

It is undisputed that he sought to introduce the agent to

sellers other than Rodriguez, which was against Rodriguez's

interest. Castro concedes that he facilitated the 11.6 gram

transaction; his only argument is that he facilitated the

purchase and not the sale. The district court found that Castro

facilitated the transaction and concluded that it did not matter

whether Castro was acting as an agent of the buyer or as an

agent of the seller. We agree.

We think the aggregation of the drug quantities for the

transactions involving facilitation by Castro fits comfortably

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as relevant conduct within the scope of U.S.S.G. §

1B1.3(a)(1)(A). Under subsection (a)(1)(A), the question is

whether the distribution was an act "committed, aided, abetted,

. . . or willfully caused by" Castro "that occurred during the

commission of the offense of conviction." Castro was convicted

under 21 U.S.C. § 846 for conspiracy to violate 21 U.S.C. §

841(a)(1), which renders it "unlawful for any person knowingly

or intentionally . . . to . . . distribute, . . . or possess

with intent to . . . distribute, . . . a controlled substance."

A defendant can be found to have aided or abetted distribution

if the defendant "associated himself with the underlying

venture, participated in it as something he wished to bring

about, and sought by his actions to make it succeed." United

States v. Rullan-Rivera, 60 F.3d 16, 19 (1st Cir. 1995) (quoting

United States v. Clifford, 979 F.2d 896, 899 (1st Cir. 1992))

(internal quotation marks omitted).

There is no question that Castro aided or abetted the October

20 distribution. Castro told the buyer that Rodriguez would get the

crack right away and asked the buyer, on Rodriguez's behalf, if the

buyer had the money to purchase the crack. He also interpreted the

Spanish conversation between Rodriguez and another seller and advised

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the buyer that the crack would weigh sixteen or seventeen grams. On

these facts, the 11.6 gram possession with intent to distribute was

properly attributed to Castro under subsection (a)(1)(A).1

Castro responds that his participation in the distribution

was limited to aiding the buyer. Castro's "buyer's agent" defense has

long been rejected by this and other circuits as a defense to drug

distribution under 21 U.S.C. § 841(a)(1). United States v. Porter,

764 F.2d 1, 10-12 (1st Cir. 1985) (collecting cases); accord United

States v. Pruitt, 487 F.2d 1241, 1243 (8th Cir. 1973) (collecting

cases); see also Minor v. United States, 623 A.2d 1182, 1186 (D.C. App.

1993) (noting "uniform agreement among the federal courts" that the

"agent of the buyer" defense does not exist under § 841(a)(1)).

Section 841(a)(1) contains a broad prohibition on distribution

rather than a narrow one on sale, and so it does not matter that

1 The October 20 distribution was a "reasonably
foreseeable act[ ] . . . in furtherance of [a] jointly
undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(B). Thus
Castro is also liable for that transaction under subsection
(a)(1)(B) because the October 20 transaction was obviously
foreseeable by Castro (indeed, he actively participated in it)
and in furtherance of an ongoing conspiracy to distribute crack.
Because, however, the transactions for which Castro was held
liable involved substantive distributions which he personally
facilitated (rather than planned transactions or transactions by
other conspirators while he was a member of the conspiracy) we
think treatment as an aider and abetter under subsection
(a)(1)(A) is a better analytical fit.

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Castro sought to help the buyer rather than the seller when he

facilitated the distribution. The relevant statute makes this point

explicitly: it defines "distribute" as "to deliver," 21 U.S.C. §

802(11), and it defines "deliver" as "the actual, constructive, or

attempted transfer of a controlled substance . . . whether or not there

exists an agency relationship," id. § 802(8) (emphasis added).

Accordingly, it is enough that Castro participated in the transfer of

crack cocaine from Rodriguez to the undercover agent. Regardless of

whether Castro was acting to help the buyer or the seller, he

facilitated the transfer of the drug and that is sufficient to expose

him to liability for that transaction for sentencing purposes.2

B.

Second, Castro objects to the district court's

consideration of his probation sentence for a prior disorderly

2 In contrast, under former 26 U.S.C. § 4705(a) (repealed
1970), the law prohibited sale of certain drugs, rather than
distribution, and so acting solely as an agent for the buyer was
sometimes a valid defense to a charge of selling. United States v.
MacDonald, 455 F.2d 1259, 1261 (1st Cir. 1972); United States v.
Barcella, 432 F.2d 570, 571 (1st Cir. 1970). The Comprehensive Drug
Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat.
1236 (codified as amended at 21 U.S.C. §§ 801-971 and in scattered
sections of titles 18, 21, and 42), which repealed the subchapter of
the Code including 26 U.S.C. § 4705, prohibits distribution. 21 U.S.C.
§ 841(a)(1). The prohibition on distribution is broader in scope than
the former prohibition on sale -- the claim that one acted on the
buyer's behalf is not relevant to the charge that one participated in
a distribution. Porter, 764 F.2d at 11; accord Pruitt, 487 F.2d at
1245.

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conduct conviction when calculating his criminal history.3 He

says that violation of his probation sentence could not have

resulted in jail time under state law and so, under the

guidelines, it is not "probation" of the type that can affect

one's criminal history. The district court concluded that,

under the clear text of U.S.S.G. § 4A1.2(c), the offense was

properly scored. We agree.

Massachusetts law provides that "idle and disorderly

persons, [and] disturbers of the peace . . . may be punished by

imprisonment . . . for not more than six months, or by a fine of

not more than two hundred dollars, or by both." Mass. Gen. Laws

ch. 272, § 53 (2000). Nonetheless, Castro says his one year probation

sentence was not an alternative to jail time because when he first

appeared in state court on his disorderly conduct charges, the judge

declined to appoint counsel4 and informed him that his sentence would

3 Whether the court considers Castro's disorderly conduct
conviction as a prior conviction for purposes of computing his
criminal history under the guidelines is important, he says,
because if this prior conviction counts, then Castro's criminal
history category is III, which yields a sentencing range of 87
to 108 months, but if this conviction does not count, then
Castro's criminal history category is II, which yields a
sentencing range of 78 to 97 months.
4 It may be that counsel did in fact represent Castro
before he actually received his probation sentence and so he

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not include any jail time. The judge applied Mass. Gen. Laws ch. 211D,

§ 2A (2000), which provides that

a criminal defendant charged with a misdemeanor or a
violation of a municipal ordinance or bylaw need not
be appointed counsel if the judge, at arraignment,
informs such defendant on the record that, if the
defendant is convicted of such offense, his sentence
will not include any period of incarceration. For
good cause, that judge or another judge of the same
court may later revoke such determination on the
record and appoint counsel, and on the request such
counsel shall be entitled to a continuance to conduct
any necessary discovery and to prepare adequately for
trial.

Castro then says that probation, as defined by a single

dictionary, is a sentencing alternative to jail and that, because jail

was not an option, he was not sentenced to "probation" as the term is

sometimes defined. Castro also points to U.S.S.G. § 4A1.1, application

note 4, which states that probation counts as a criminal justice

sentence but a sentence to pay a fine does not. He says that it would

be absurd for his probation to count toward his criminal history when

the more severe sentence to which he might have been subject under

Mass. Gen. Laws ch. 272, § 53, was a two hundred dollar fine, which

would not be counted.

The clear text of the guidelines defeats Castro's argument.

Under U.S.S.G. § 4A1.2, which provides instructions for computing

could have received jail time. For purposes of the issue here,
we need not resolve the matter.

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criminal history, sentences for disorderly conduct are counted toward

one's criminal history only if "the sentence was a term of probation of

at least one year or a term of imprisonment of at least thirty days"

(or if the instant offense is similar to the prior disorderly conduct

offense). U.S.S.G. § 4A1.2(c). Castro's disorderly conduct conviction

resulted in a sentence of "probation of at least one year" and so the

district court correctly counted it. We will not rewrite the text of

the guidelines where, as here, the Commission has expressed a clear

intent to count sentences to probation of at least one year as

criminal history. See United States v. Talladino, 38 F.3d 1255,

1265 (1st Cir. 1994).

In addition, it is not absurd to count disorderly

conduct convictions that result in probation sentences of at

least one year, but to refrain from counting similar convictions

that result only in a fine. The "at least one year" requirement

imposed by the guidelines, U.S.S.G. § 4A1.2(c)(1)(A), reflects

a plausible determination that disorderly conduct convictions

resulting in at least one year of probation are the type of

convictions that are sufficiently serious to be included in

one's criminal history, while such convictions, should they

result only in a fine, are not. The supervisory element of a

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one year probation sentence alone could be deemed more severe

punishment than a fine and thus it would be sensible to count a

one year probation sentence and not a fine.

Finally, the factual premise of Castro's argument is flawed.

Castro argues that because the court invoked Mass. Gen. Laws ch. 211D,

§ 2A, at his arraignment, he could not receive a prison sentence as an

alternative to his probation. But Castro could have received a prison

sentence; by engaging in disorderly conduct, he exposed himself to a

fine or jail time. Mass. Gen. Laws ch. 272, § 53. That the judge

chose not to appoint counsel, thereby removing the prison

option,5 id. ch. 211D, § 2A, does not detract from the fact that at

the time Castro was charged, probation, a fine, and jail time

were all potential sentences. The "absurdity" Castro attempts to

construct does not materialize because the potential alternative to

Castro's probation was not merely a fine, but also included the

possibility of a jail sentence of not more than six months under

5 Even after the state court invoked § 2A, prison remained a
possibility for Castro. Section 2A, in a part ignored by Castro,
states that

[a] judge . . . may later revoke such determination [of
ineligibility for prison] on the record and appoint counsel, and
on the request such counsel shall be entitled to a continuance to
conduct any necessary discovery and to prepare adequately for
trial.

Mass. Gen. Laws ch. 211D, § 2A (emphasis added).

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Mass. Gen. Laws ch. 272, § 53.

III.

For these reasons, the sentence is affirmed.

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