United States Court of Appeals
For the First Circuit
No. 00-2242
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT PICCOLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Lori H. Levinson, with whom Cain, Hibbard, Myers & Cook, P.C. was
on brief for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
March 7, 2002
CYR, Senior Circuit Judge. Appellant Robert Piccolo
seeks to set aside the prison sentence imposed following his
guilty plea to conspiring to possess marijuana with intent to
distribute, see 21 U.S.C. §§ 841(a)(1), 846. We affirm.
I
BACKGROUND
After the arrests of the three individuals whom Piccolo
had dispatched to Texas, with $35,000, to acquire 100 pounds of
marijuana in November 1998, the government initially sought to
include, as "relevant conduct," an additional 200 pounds of
marijuana which Piccolo allegedly attempted to purchase in
December 1998, an offense not charged in the indictment. 1
Following an intervening change in the law, however, see
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),
the government withdrew its request relating to "relevant
conduct," and the revised presentence report reflected that
Piccolo was accountable for only the 100 pounds involved in the
attempted November 1998 marijuana purchase.
1
The additional 200 pounds of marijuana would have increased
the statutory maximum sentence to forty years; the base offense
level to 26. With a three-level downward adjustment for
acceptance of responsibility, and a four-level upward adjustment
for role in the offense, Piccolo's offense level would have been
27. And given his category IV criminal history, Piccolo's
guideline sentencing range would have been between 100 and 125
months.
3
At sentencing, the district court assigned a base
offense level ("BOL") of 20, and an adjusted offense level of
21, (i.e., resulting in a guideline sentencing range ("GSR") of
57-71 months). See supra note 1. As five years is the maximum
prison term for conspiring to possess 100 pounds of marijuana
for distribution, the court used 60 months as its starting point
for calculating the downward departure recommended by the
government in recognition of Piccolo's "substantial assistance,"
see U.S.S.G. § 5K1.1. The court then imposed a 45-month prison
term.
II
DISCUSSION
Piccolo first contends that the district court — in
noting that he had received a "break" when the government
abandoned its request that the additional 200 pounds of
marijuana be considered "relevant conduct" — implicitly
suggested that it would credit him with that 200 pounds in
determining the extent of its § 5K1.1 downward departure, and
that absent such improper consideration, the court in all
likelihood would have allowed an even larger downward departure,
resulting in a lesser sentence than 45 months. We do not agree.
First, even if we assume that the district court
restricted its downward departure in response to Piccolo's
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accountability for the additional 200 pounds of marijuana,2 the
PSR recites ample competent evidence (e.g., statements by
criminal associates) implicating him in the December 1998 drug
deal. See United States v. Caba, 241 F.3d 98, 101 (1st Cir.
2001) (holding Apprendi inapplicable where resulting sentence
does not exceed statutory maximum).
Second, Piccolo contends that there is insufficient
record support for the four-level upward BOL adjustment imposed
upon him as an organizer or leader of a criminal venture
involving at least four other individuals. See U.S.S.G. §
3B1.1(a). This claim is groundless as well, due to the fact
that three of the four other conspirators, following their
arrests, identified Piccolo as their leader and/or organizer.
See United States v. Scott, 270 F.3d 30, 51 (1st Cir. 2001)
("clear error" review).3
2
The record bears out that the district court's remarks
simply constituted an observation regarding the government's
post-Apprendi decision not to attempt to establish any such
relevant conduct, rather than that the court would consider the
200-pound marijuana purchase in quantifying its downward
departure, which it ascribed exclusively to two very different
factors: Piccolo's exemplary military record and his marijuana
dependency.
3
Since the PSR contained ample references to Piccolo's
pivotal role in the offense, see United States v. Connolly, 51
F.3d 1, 5 (1st Cir. 1995) (noting that court may base § 3B1.1
adjustment on codefendants' hearsay statements), Piccolo's
principal contention on appeal, i.e., that the only evidentiary
support for this adjustment consisted of unsworn assertions by
5
Lastly, at oral argument Piccolo's counsel pressed the
claim — no longer colorable — that the district court
contravened Apprendi by not requiring the government to
establish, beyond a reasonable doubt, all facts relied upon in
arriving at its determination that Piccolo's "role in the
offense" was that of an "organizer" or "leader," see U.S.S.G. §
3B1.1, cmt. n.4. The Apprendi contention is plainly precluded
by controlling authority directly on point. See, e.g., Caba,
241 F.3d at 101; United States v. LaFreniere, 236 F.3d 41, 49-50
(1st Cir. 2001); United States v. Baltas, 236 F.3d 27, 40-41
(1st Cir.), cert. denied, 532 U.S. 1030 (2001).
Caba makes crystal clear that Apprendi is inapposite
where an upward departure does not result in a sentence which
exceeds the lowest applicable statutory maximum.
By its own terms, the holding in Apprendi
applies only when the disputed "fact"
enlarges the applicable statutory maximum
and the defendant's sentence exceeds the
original maximum. For this reason, Apprendi
simply does not apply to guideline findings
.. . that increase the defendant's sentence,
but do not elevate the sentence to a point
beyond the lowest applicable statutory
maximum. In other words, even after
Apprendi, the existence vel non of
sentencing factors that boost defendant's
sentence but do not trip a new statutory
government counsel, see United States v. Patterson, 962 F.2d
409, 415 (5th Cir. 1992) (finding such assertions insufficient,
"by themselves," under § 3B1.1) (emphasis added), is groundless.
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maximum remain grist for the district
judge's [factfinding] mill under a
preponderance-of-the-evidence standard.
Caba, 241 F.3d at 101 (emphasis added; citations omitted).
Piccolo attempts to distinguish Caba on the grounds
that (i) the four-level increase in the BOL — stemming from the
district court determination that Piccolo was a "leader or
organizer" — elevated the GSR above the statutory five-year
maximum prison term, and (ii) by then employing the improperly
elevated GSR as the starting point from which it proceeded to
calculate the downward departure which Piccolo was awarded for
substantial assistance to the government, see U.S.S.G. § 5K1.1.
Piccolo presents neither sound argumentation nor pertinent
supporting authority for these distinctions.
The district court sentenced Piccolo to a forty-five
month prison term for conspiring to possess marijuana, with
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) &
846. As the maximum five-year prison sentence prescribed by
statute, see 21 U.S.C. § 841(b)(1)(D), clearly exceeds the
forty-five month term imposed, Apprendi plainly is not
implicated.
We have considered all the remaining contentions
advanced by Piccolo on appeal; many are meritless attempts to
7
skirt the clear message in Apprendi and Caba and the remainder
were never preserved below.
Accordingly, the district court judgment is affirmed.
8