United States v. North

Not for Publication is West's Federal Reporter
Citation is Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 01-1039

UNITED STATES,

Appellee,

v.

JEFFREY NORTH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O’Toole, Jr., U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Jeffrey North on brief pro se.
Michael J. Sullivan, United States Attorney, Christopher F.
Bator, Assistant United States Attorney, and Elizabeth D. Collery,
Attorney, Appellate Section, on brief for appellee.

January 22, 2004
 Per Curiam. Jeffrey North appeals his conviction and

forty-five year sentence for drug trafficking and weapons

violations. We affirm.

The indictment charged North with one count of

conspiracy to possess with intent to distribute large quantities

of marijuana, two counts of illegal possession of weapons, and one

count of illegal "use and carry" of weapons in relation to the

charged drug conspiracy. North's co-defendant, Regina Monaghan,

was jointly charged in the drug conspiracy and, in a separate

count, also charged with money laundering.

At the close of a seventeen-day joint jury trial,

Monaghan was acquitted. North was convicted of all the charges

against him. He was sentenced to a term of imprisonment of forty-

five years.

The evidence against North included the testimony of

three witnesses who each headed his own (separate) drug

distribution ring: Starita, Stevens and Petraglia. Petraglia

initially had assisted Stevens, becoming a separate supplier to

North when Stevens left town. Each supplier-witness testified

in detail that on multiple occasions he supplied to North very

large (wholesale) quantities of marijuana in exchange for North's

payment of large amounts of cash. During each transaction, North

re-wrapped the drugs that he purchased in a unique fashion in the

supplier's presence. Each supplier also testified that North

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carried, displayed and/or brandished various firearms during the

transactions. The suppliers' testimony was corroborated by other

witnesses who had played lesser roles in the deals, including

Adams (who assisted in transactions with both Stevens and

Petraglia), Rosa (who helped Stevens), and Butler (who was

North's driver and who witnessed, inter alia, North's purchase

of weapons and his resale of drugs).

North's connection to the weapons identified by the

suppliers also was corroborated by the testimony of one Regan.

Regan testified that he and other members of the "DeCologero

gang" had stolen firearms from North's apartment, including the

machine gun, silencer, UZI and ammunition charged to North in the

indictment. The robbers had stashed some of the stolen weapons

in the apartment of a young woman, Aislin Silva. A search of

Aislin Silva's apartment by the ATF in November 1996, revealed

the guns, which were duly seized. Others of North's weapons

apparently ended up in a marsh where they were found in February

1997.

North testified in his own defense, denying almost

every one of the government witnesses' incriminating allegations.

In turn, North accused his accusers of engaging in a perjurious

effort to frame him for their own drug dealing and falsely to

attribute to him control or possession of weapons that the

accusers had used in connection with their own drug activities.

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Other incriminating physical evidence found by the police among

North's possessions, North said, actually belonged to the

government witnesses. Still, North admitted that he was

acquainted with all of the drug-dealer witnesses (testifying that

he worked as a pet/house-sitter for Stevens); that he had

illegally purchased other drugs (steroids for personal use); and

that he had participated in at least one theft of money from one

of the drug suppliers.

North's testimonial protestations of innocence were

severely impeached on cross-examination by proof of his own

inconsistent out-of-court admissions in (1) tape-recorded

telephone calls that he made from state prison to government

witnesses, and (2) a statement that he made in a proffer session

after his arrest. In an effort to blunt the impeaching effect,

North asserted at trial that his taped telephonic comments did

not mean what they seemed to mean, and that the pretrial

statement he had proffered to the government was filled with

lies.

North was represented by counsel at trial. In mid-

trial, he moved for permission to proceed pro se. That motion

was denied. After the trial, he was permitted to represent

himself at sentencing, although the court also appointed standby

counsel for him.

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 On appeal, North initially chose to proceed pro se. He

then changed his mind and moved for appointment of counsel. That

motion was granted. He then reversed field once again, and

insisted upon appearing pro se. He persisted in that position

notwithstanding this court's stern warning about the difficulties

he likely would face if he chose to proceed without counsel on

appeal. We ultimately granted his renewed motion to appear pro

se.

North's brief presents ten labeled points. Each point

includes a number of sub-points. Almost all of the issues are

vaguely or imprecisely framed. In light of his pro se status, we

interpret his arguments liberally, gleaning, by subject, the

following sets of issues.

I. THE CONSPIRACY CHARGE

North argues that there were a number of variances

between the evidence adduced at trial and the conspiracy charged

in Count Three of the superseding indictment. As a result, he

urges that there was insufficient evidence to support his

conviction on Counts Three and Four. Count Three charges:

From in or about March, 1996 to in or about
February, 1999, at Stoneham, Tewksbury,
Melrose and elsewhere in the District of
Massachusetts, and elsewhere . . . . Jeffrey
North and Regina Monaghan. . . . defendants
herein, did knowingly and intentionally
combine, conspire, confederate and agree with
each other, and with other persons known and
unknown to the Grand Jury, to possess with
intent to distribute marijuana. . . . in

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 violation of Title 21, United States Code,
Section 841(a)(1) . . . . [and] Section 846.

Count Four is dependent on Count Three. Count Four

charges that North "used" and "carried" specifically identified

weapons "during and in relation to the drug trafficking crime

alleged in Count Three . . ."

A. "Single" vs. "Multiple" Conspiracies

Below, all parties agreed that Count Three charged a

"single" conspiracy. The defense objected that the government's

evidence varied from the charge by instead indicating at least two

separate conspiracies between North and his competing supply

sources: one conspiracy between North and the distribution ring

of Stevens/Adams/Rosa (and possibly Petraglia), and the other

conspiracy exclusively between North and Starita.1 There was no

interdependence among the competing sources, nor proof even of an

awareness of the other suppliers by Starita, according to the

defense. In opposition, the government contended that the

1
The defense also argued, and North echos here, that the one
and only conspiracy properly noticed was the
Stevens/Adams/Rosa/Petraglia conspiracy since Starita's testimony
had been insufficiently noticed. As framed, the argument
implicates both Count Three and Count Four (as the proof that North
had "used and carried" some of the weapons identified in Count Four
had come largely from Starita's testimony about guns brandished
during the Starita/North transactions). This argument is belied by
the record. While Starita's name initially was omitted from a bill
of particulars that named the other conspirators, notice of
Starita's testimony was given approximately two and one-half weeks
before the start of trial. The timing and manner of the notice was
not shown to have caused any separate prejudice to the defense.

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evidence proved that North was the "hub" of a single conspiracy

to acquire marijuana from multiple sources of supply. These

sources necessarily substituted for or supplemented one another

from North's point of view.

The court correctly submitted this issue to the jury. The

court charged -- as to each defendant -- that the jury should

determine whether the evidence showed one "overall" conspiracy or

separate conspiracies, and "if you believe the evidence shows that

either defendant was a member of a conspiracy different from the

one charged in the indictment, then you must find him or her not

guilty. . . "

As raised on appeal, North's attack poses three sub-

questions:

(1) Is the evidence sufficient to permit a
jury to find the (express or tacit) agreement
that the indictment charges? (2) If not, is
it sufficient to permit a jury, under a
proper set of instructions, to convict the
defendant of a related, similar conspiracy?
(3) If so, does the variance affect the
defendants substantial rights or does the
difference between the charged conspiracy and
the conspiracy proved amount to "harmless
error?"

United States v. Glenn, 828 F.2d 855, 857-58 (1st Cir. 1987); see

also United States v. Sutherland, 929 F.2d 765, 772 (1st Cir.

1991).

(1) Sufficiency of the evidence. We review the

sufficiency of the evidence to prove the charged "single"

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conspiracy in the light most favorable to the verdict. United

States v. Wihbey, 75 F.3d 761, 774 (1st Cir. 1996). Courts

usually look for proof of factors such as (1) a "common goal," (2)

interdependence among the participants, and (3) overlap among

participants. United States v. Portela, 167 F.3d 687, 694 (1st

Cir. 1999); cf. United States v. Shea, 211 F.3d 658, 665 (1st Cir.

2000) (observing that "no magic formula exists for determining

when a set of jointly committed crimes adds up to an overarching

conspiracy or enterprise," but courts "tend to look" for the

listed factors).

The evidence is overwhelmingly sufficient to prove, as

the prosecution urged, that North was the hub of an enterprise

that obtained drugs from multiple drug supplier-spokes. All

participants thus had as a "common goal" an interest in selling

marijuana for a profit. See Portela, 167 F.3d at 694 (reasoning

"that each defendant had an interest in furthering the

distribution of [drugs] is also sufficient evidence that they

shared a common goal with the other participants"). Proof of

North's own "pervasive involvement" as the "single core

conspirator" also sufficed to show an "overlap" among the

participants. Id. at 695. There also was ample proof to imply

an "interdependence" among the participants.

(2) Similar Conspiracies. Even if the evidence is

viewed as proving more than one conspiracy, each of them would fit

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within the indictment's charge -- and each was sufficiently

proven.

There was overwhelming proof of a pattern of large

quantity sales between North and each of his supply sources,

sufficient to permit a jury to find an implicit, if not explicit,

agreement that each supplier would be a continuing source of

supply for North's resale efforts. See United States v. Moran,

984 F.2d 1299, 1303 (1st Cir. 1993) (explaining that a continuing

course of dealing between buyer and seller suggests the shared

purpose, knowledge and interdependence necessary to prove a

conspiracy between them). And, viewing each source as a

participant in a separate conspiracy, each conspiracy would fit

within the description in the indictment: that from March 1996 to

February 1999, North conspired with persons "known and unknown"

to "possess with intent to distribute marijuana."

(3) Substantial Rights. In all events, the alleged

variance through proof of more than one conspiracy did not affect

North's substantial rights. We review this issue de novo, see

Wihbey, 75 F.3d at 774, and discern no prejudice from the

purported variance.

The defense had notice of the government's case

sufficient to avoid any surprise at trial. There was no danger

of a prejudicial spillover effect since the evidence was

sufficient to prove a conspiracy between North and each of the

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suppliers. There is no reason to suspect any ensuing confusion

about the scope of the judgment, which runs solely against North.

As to Count Four, since each of North's allegedly

separate agreements within the confines of the Count Three charge,

there also was no lack of proof that North "used and carried" each

of the weapons identified in Count Four "during and in relation

to the drug trafficking crime alleged in Count Three."

B. Vagueness of the Indictment

North argues for the first time on appeal that the Count

Three conspiracy charge is impermissibly vague. He suggests that

an overall lack of specificity, as well as some specific

omissions,2 may have prejudiced him by giving insufficient notice

"of what he must be prepared to meet," and allowing the

prosecution to "guess" at the facts upon which the grand jury had

relied. As a result, he urges, he was deprived of his right to

be tried only on charges presented to the grand jury.

North does not point to any actual prejudice, but draws

upon general principles culled from a number of factually

distinguishable cases, including Russell v. United States, 369

U.S. 749, 763-70 (1962). However, the facts of each case and the

2
North essentially backs into this point, arguing that the
charge is impermissibly vague unless it is construed to charge a
conspiracy solely between North and Monaghan. Construing the
indictment as written, to include a conspiracy with unnamed others
and without specification of an overt act, he argues, renders it
too uncertain.

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particular crime charged necessarily inform any evaluation of the

fairness of notice of the conduct charged by the grand jury.

Tomasetta, 429 F.2d 978, 979 (1st Cir. 1970). The test is "not

whether in hindsight the indictment or information could have been

more complete. . . but rather whether it fairly identifies and

describes the offense." United States v. Allard, 864 F.2d 248,

250 (1st Cir. 1989).

A perfect alignment between the indictment's charge and

the offense conduct of conviction is not required. Where the

defendant is convicted of narrower conduct than that charged in

the indictment, there is no violation of the Fifth Amendment as

long as the trial proof corresponds to an offense which was

clearly set out in the indictment. United States v. Miller, 471

U.S. 130, 136 (1985).

Here, the indictment clearly charged that North

conspired with Monaghan and "known and unknown" other persons to

possess and distribute large quantities of marijuana in and around

identified cities and towns in Massachusetts during a specified

two-year period. The trial proof conformed to the indictment by

showing that North in fact conspired with a number of persons to

buy and sell large quantities of marijuana on many occasions in

the relevant time period, in and around the named places. The

offense proved, as in Miller, was thus fully contained in the

indictment, and no additional crime was added. Id. at 137-38,

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143. And North has not shown that the indictment's wording (as

supplemented in the bill of particulars and in pretrial

discovery), in any way prejudiced his ability either to defend

himself at trial or to use the judgment as a bar to subsequent

prosecutions. Id. at 138 n.5.

At any rate, any possible vagueness argument was waived

by the failure to object on that ground at trial. See United

States v. Cotton, 535 U.S. 625, 631 (2002) (holding that,

generally, defects in an indictment may be waived). Accordingly,

we apply a plain error standard of review. Id.

That ends the matter. Even if there were an error --

and we see none -- there is no reason to believe that it had any

effect on North's substantial rights since he had ample actual

notice of the government's case against him. There is also no

reason to doubt the fairness, integrity, or public reputation of

the proceedings. Here, as in Cotton, "the real threat to the

fairness, integrity, and public reputation of the judicial

proceedings would be if . . . despite the overwhelming and

uncontroverted evidence that [defendant] was involved in a vast

drug conspiracy," his conviction was reversed due to a non-

prejudicial miswording of the indictment. Id. at 634.

Names of Co-conspirators. North also argues for the

first time on appeal that the indictment is insufficient because

it did not identify by name any co-conspirators other than

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Monaghan. But there is no requirement that an indictment specify

the names of co-conspirators. The only relevant question is

whether, without the names, the defendant had sufficient notice

of the charged offense to prepare a defense and to know whether

there was reason to plead a former acquittal or conviction.

United States v. Indorato, 628 F.2d 711, 717 (1st Cir. 1980).

North was given sufficient pretrial notice of the names

and testimony of alleged co-conspirators to enable him to prepare

a defense. There was and is no legitimate double jeopardy issue.

Consequently, there was no prejudice -- and no plain error.

Overt act. North argues for the first time on appeal that

the conspiracy count is insufficient because it fails to specify

an overt act. Under 21 U.S.C. § 846, the federal crime of drug

conspiracy is complete upon the making of an agreement. See

United States v. Shabani, 513 U.S. 10, 15-16 (1994). The

conspiratorial agreement itself is the "actus reus," so the

government is "not required to plead or prove any overt act in

furtherance of a section 846 conspiracy." United States v. Vega-

Figueroa, 234 F.3d 744, 753 (1st Cir. 2000) (quoting United States

v. Bello-Perez 977 F.2d 664, 669 (1st Cir. 1992)); cf. United

States v. Nelson-Rodriguez, 319 F.3d 12, 28 (1st Cir. 2003)

(noting that an agreement may be proved by circumstantial

evidence). Thus, no plain error attended this omission.

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 C. Monaghan's Acquittal

Although North disclaims any argument for acquittal

based on inconsistent verdicts, he argues that since Monaghan was

acquitted of the conspiracy charge, he too must be acquitted. He

offers several theories to bridge this gap.

First, North argues that Monaghan's acquittal requires

that all references to her must be read out of the indictment,

thus allegedly rendering the indictment insufficient for lack of

specificity. As the government sensibly rejoins, the sufficiency

of an indictment is not determined by hindsight but by whether it

gave fair notice at the outset, stated all the elements of the

offense, and enabled a plea of double jeopardy. As discussed

above, the indictment passed this test.

Second, North argues that Monaghan's acquittal

logically means that there was insufficient proof against him of

the one conspiracy concretely noticed in the indictment, i.e., a

North/Monaghan conspiracy. This tautology, too, must be rejected.

In United States v. Bucuvalas, 909 F.2d 593 (1st Cir. 1990), we

rejected a nearly identical argument, holding that the acquittal

of the only other named co-conspirator did not mean that there

existed no conspiracy between the two but might instead mean,

among other possibilities, that the jury was disposed to lenity

toward the other co-conspirator. Id. at 595. Lenity seems to be

an especially plausible explanation for Monaghan's acquittal,

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since the government's proof against Monaghan suggested that, by

comparison to North, she played a very limited role.

The bottom line is that, despite North's creative

interpretation of the indictment, it expressly charged a

conspiracy that implicated other persons. Thus, even if we were

to apply a rule requiring consistency, (i.e., requiring reversal

of a conspirator's conviction when all other alleged co-

conspirators have been acquitted), there is no perceived

inconsistency "where the convicted defendant was alleged and shown

to have conspired with one or more persons who were unapprehended,

dead, or simply unknown, . . . [or where] any [other]

coconspirator's case was disposed of other than on the merits."

Id. at 595 n.3. North's conviction obviously fits into the latter

category, so there was no inconsistency here.

In a third variation on this theme, North argues that

the court's charge to the jury that each defendant's participation

in the conspiracy should be separately determined amounted to a

constructive amendment. In light of what we already have said,

the instruction was correct. Upon de novo review of the jury

instruction, we find that it was faithful to the indictment's

charge and there was no constructive amendment.

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 II. Alleged Evidentiary Errors

North also assigns as error the unobjected-to admission

into evidence of several pieces of evidence. We assess each claim

of error separately.

A. The Murder of Aislin Silva.

Upon our own review, there was neither plain error nor

prejudice to North in the admission into evidence of the

scattered, oblique references to Silva's murder in lengthy tape

recordings and in a few exhibits. Indeed, the defense took

advantage of the fact of the murder as a means of disparaging the

credibility of at least one unfriendly witness, Regan, and any

possibility of prejudice to North was dispelled by Regan's

testimony on cross-examination that North was not involved in the

murder.

B. Alleged Perjury.

North asserts that the prosecution presented perjured

testimony in violation of his right to due process when it

permitted Starita to testify that he first met North in 1996.

Impliedly, North urges that the admission of the alleged perjury

was "plain error." He asserts that Starita's perjury is

demonstrated by record evidence of an inconsistency between

Starita's grand jury and trial testimony and by inconsistencies

between Starita's trial testimony and facts recorded in a hearsay

statement that was excluded from evidence. Upon our own review,

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we apprehend no proof in the record of any perjury, merely some

attenuated or arguable inconsistencies among witnesses, and no

error at all in the admission of Starita's testimony about the

date.

C. Allegedly Coerced Confession.

North impliedly urges plain error in the failure of the

court to exclude his confession from evidence and/or to order a

hearing into its voluntariness. North admitted on direct

examination that he had made an inculpatory statement to

government investigators during a pretrial proffer session, but

he said that the statement was a lie. On cross-examination, he

asserted that the statement had been elicited from him by the

investigators through threats and the "torture" of his family

members.

Upon our own review of the record, we see no meaningful

indicia of coercion. North's conclusory accusations instead seem

to be refuted by the circumstances surrounding the proffer

session.3 Accordingly, there was no plain error in the court's

failure sua sponte to either notice this as an issue or to order

a hearing on the voluntariness of the statement. See generally

3
A government investigator testified that the proffer session
was arranged to accommodate North's spontaneous request for the
session. North was apparently represented by counsel at the time
(or, at least, was given the opportunity to have counsel present.

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United States v. Santiago Soto, 871 F.2d 200, 201-03 (1st Cir.

1989).

III. INEFFECTIVE ASSISTANCE CLAIMS

North has raised a number of claims of ineffective

assistance by trial counsel. We decline to address them on direct

appeal.

"Although we have occasionally reviewed ineffective

assistance claims on direct appeal, 'we travel this route only

when the critical facts are not in dispute and the record is

sufficiently developed to allow reasoned consideration of the

claim." United States v. Benjamin, 252 F.3d 1, 12 (1st Cir. 2001)

(quoting United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.

1993)). As we observed in Mala, "[w]e have held with a regularity

bordering on the monotonous that fact-specific claims of

ineffective assistance cannot make their debut on direct review

of criminal convictions, but, rather, must originally be presented

to, and acted upon by, the trial court." Mala, 7 F.3d at 1063.

North's fact-sensitive claims of ineffective assistance were not

presented to the trial court for initial consideration as

contemplated by 28 U.S.C. § 2255, and the record is insufficiently

developed to permit reasoned appellate consideration under

ordinary standards of appellate review. That ends the matter.

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 IV. DENIAL OF REQUEST TO PROCEED PRO SE

We see no error in the denial of North's mid-trial

request to proceed pro se. On the eleventh day of the trial,

North requested that his trial counsel's representation be

permitted to continue only until the close of the prosecution's

case so that, thereafter, North could present his case in defense

pro se. He explained that he wished to call and recall witnesses

in order to pose questions and present theories with which his

counsel disagreed.

The court held a hearing on the request and engaged

North in a lengthy colloquy anent the evidence and theories that

he wished to present. The court also heard from North's counsel,

counsel for co-defendant Monaghan, and the government. The court

then rejected North's request.

The controlling legal principles are clear:

A district court has considerable
discretion to grant or deny a
request for self-representation
that is not presented until trial
is underway. . . But that
discretion is not unbridled. It is
improper for the court to deny the
defendant the right to serve as his
own attorney solely because of a
perceived lack of legal dexterity.
. . Rather, in the last analysis
the court must balance the
legitimate interests of the
defendant in self-representation
against the potential disruption of
the proceedings already in
progress.

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United States v. Noah, 130 F.3d 490, 498 (1st Cir. 1997)

(citations and internal quotation marks omitted); cf. Faretta v.

California, 422 U.S. 806, 834-36 (1975) (observing that a

defendant has an absolute right to self-representation when the

right is asserted in a timely manner prior to trial).

The trial judge's decision rejecting North's request

expressly balanced a myriad of relevant factors including the

complexity of the trial, the numerous delays and conferences that

had already occurred, the likely further disruption that might be

caused by granting the request, and the likely prejudice to the

other parties. The court supportably found that the evidence that

North wished to present on his own was remote, collateral and

probably prejudicial to his own cause,4 whereas his defense

lawyers "are highly experienced and skilled, [and] have obviously

devoted a great deal of time and effort" to the case. In these

circumstances, the court concluded that permitting North to change

course in order to represent himself mid-trial would cause an

intolerable disruption of the orderly process of the trial -- a

disruption that outweighed any legitimate interest he might have

in self-representation. For the same reason, the court also

properly refused a narrower request to permit North to make his

own closing argument.

4
Because this determination was unexceptionable, we also
reject North's argument that he was deprived of his constitutional
right to call witnesses in his own defense.

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 These rulings pass muster. As we said in similar

circumstances:

The reasonableness of this
conclusion is scarcely open to
question. District Courts have an
institutional interest in avoiding
the disruption of trial
proceedings. To permit a defendant
to switch roles near the halfway
point of a complicated criminal
trial runs an obvious risk of
dislocating both the court's docket
and the orderly progression on the
trial. . . [and] . . . would have
tended to prejudice the
prosecution.

Noah, 130 F.3d at 498.

V. SENTENCING

North argues that the court erred in several ways in

computing his sentence for Counts One through Three (but he does

not challenge his mandatory 30-year consecutive sentence on Count

Four for use of a firearm during a drug trafficking crime). North

was sentenced to a total of 180 months on these three counts, as

follows:

(1) Concurrent terms of 120 months (the statutory

maximum on each count) for the "groupable" weapons possession

offenses in Counts One and Two.

(2) A consecutive term of 60 months for the drug

conspiracy count (Count Three).5

5
Although Count Three might have carried a higher sentence
since more than 1000 kilograms had been noticed in the indictment

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 North asserts that two types of errors occurred. First,

he accuses the court of computational mistakes under USSG §

5G1.2. These are figments of his imagination. The district

court simply did not mis-compute the "total punishment" for the

three counts in the ways that North claims. Rather, the court

correctly computed North's adjusted combined offense level (34),

and from that, in conjunction with North's criminal history

category, correctly determined the guideline sentencing range

(188-235).

Nor did the court err in its refusal to run all three

sentences concurrently. Instead, having determined that the

sentencing range was 188-235 months, and that none of the counts

of conviction had a statutory maximum greater or equal to the

total punishment, the court correctly followed the guidelines.

"The Guidelines mandate the imposition of consecutive sentences

in order to achieve (as close as possible) the 'total punishment.'

" United States v. Garcia-Torres, 341 F.3d 61, 75 (1st Cir.

2003); see also USSG § 5G1.2(d).

North's other argument is that the court violated the

rule in Apprendi by imposing a sentence in excess of 60 months.

and more than 1600 kilograms had been proven at trial, see 21
U.S.C. § 841(b)(1)(A)), the drug quantity issue had not been
submitted to the jury. At sentencing, the government agreed that
in light of the intervening decision in Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), North should receive only the default
statutory maximum (60 months) on this count. This concession seems
extremely generous, but the Apprendi issue is not before us.

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The argument is hard to follow but seems to include an attack on

the court's reliance upon the 1600+ kilos shown in evidence at

trial to compute his base offense level. But Apprendi does not

preclude a sentencing court from considering a fact that has not

been submitted to the jury for purposes authorized by the

sentencing guidelines -- so long as the sentence imposed does not

exceed the applicable statutory maximum. See United States v.

Caba, 241 F.3d 98, 100 (1st Cir. 2001). Moreover, Apprendi is

not violated by the imposition of consecutive sentences to the

extent necessary to achieve the prescribed total punishment under

§ 5G1.2 -- so long as the defendant does not receive greater than

the statutorily prescribed maximum sentence on any particular

count. United States v. Feola, 275 F.3d 216, 219 (2d Cir. 2001).

"[T]he aggregate sentence is imposed because appellant has

committed two offenses, not because a statutory maximum for any

one offense has been exceeded." Id. at 220.

North makes other arguments that are hopelessly garbled,

redundant, obviously unavailing, or otherwise not deserving of

discussion. We reject them all.

For these reasons, the conviction and sentence are

affirmed.

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