Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1188
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN DENARO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
Richard F. Comenzo for appellant.
Dickens Mathieu, with whom Michael J. Sullivan, United
States Attorney, and John A. Wortman, Jr., Assistant United
States Attorney, were on brief for the United States.
March 15, 2004
*
Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. John Denaro was sentenced to
135 months in prison after pleading guilty to one count of
conspiracy to distribute at least 500 grams of cocaine, three
counts of possession of cocaine with intent to distribute, and two
counts of distribution of cocaine.1 He argues on appeal that the
district court should have allowed him to withdraw his guilty pleas
prior to sentencing because the court did not advise him at the
guilty plea hearing of the possibility that he could be subject to
a 10-year mandatory minimum sentence. He also contends that the
court attributed more cocaine to him at sentencing than was
permitted under the indictment or warranted based on the evidence.
Finally, he claims that the court erred in determining that he was
a manager or supervisor of a criminal activity that involved five
or more persons. We affirm.
I.
A. The Guilty Plea Hearing
Denaro pleaded guilty to the charges against him without
the benefit of a plea agreement. At the outset of the hearing on
the proposed guilty pleas, the prosecutor explained to Denaro and
the court that Denaro faced a maximum possible prison sentence of
40 years and a mandatory minimum sentence of at least five years
because the charged conspiracy involved at least 500 grams of
cocaine. He then explained that the mandatory minimum sentence
1
The indictment included a criminal forfeiture count that
has no bearing on the appeal.
would increase to 10 years if the court determined at sentencing
that Denaro was responsible for at least five kilograms of cocaine.
Denaro’s counsel responded by stating his view that the drug
quantity specified in the indictment limited the mandatory minimum
sentence to five years. He acknowledged, however, that the
prosecutor was free to argue otherwise at sentencing.
The court advised Denaro during the plea colloquy that he
faced maximum possible sentences of 40 years on the conspiracy
count and 20 years on each of the substantive counts. The court
also initially advised him that he was subject to a five-year
mandatory minimum sentence. However, the court immediately revised
its statement during the following exchange:
COURT: Because each count is a
separate offense, the maximums get
added up, so that the total maximum,
if my math is correct, is 140 years
in prison, a four-year period of
supervised release, a fine of $7
million, and a special assessment of
$600, and a mandatory minimum also
of five years. The government says,
conceivably, ten years, but that’s
in dispute. Do you understand that?
WITNESS: Yes.
B. The PSR
Denaro’s Presentence Report (“PSR”) concluded that he was
subject to a 10-year mandatory minimum sentence pursuant to 21
U.S.C. § 841(b)(1)(A) because he was responsible for 7.066
kilograms of cocaine. The PSR based its drug quantity
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determination on: (1) 412.32 grams that were seized from Denaro;
(2) 1,652 grams that were derived from drug ledgers; (3) 50 grams
that were attributed to Denaro by Jonathan Pierce, a distributor
who worked for Denaro; and (4) 4,952 grams that were attributed to
Denaro by Kyle Visco, a cooperating coconspirator.
The PSR also proposed a four level increase in Denaro’s
offense level pursuant to U.S.S.G. § 3B1.1(a) because it concluded
that Denaro was an organizer or leader of a criminal activity that
involved five or more persons. The PSR named Denaro, Pierce,
Visco, Denaro’s principal supplier, Yolieda Aquire, and one of his
distributors, Tiffany Franklin, as the five participants in the
conspiracy.
Denaro objected to the PSR on the grounds that the
indictment limited the amount of cocaine that could be attributed
to him to 4,999 grams, the drug quantity determination was
excessive, and the proposed role in the offense adjustment was
unwarranted.
C. The Sentencing Hearing
Denaro moved to withdraw his guilty plea during the
sentencing hearing because he claimed that the district court
failed to properly advise him of the possibility that he could be
subject to a 10-year mandatory minimum sentence. The court
rejected his motion because it determined that Denaro had knowledge
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of the potential penalties he faced when he entered his guilty
pleas.
The court then turned to Denaro’s objections to the PSR.
After hearing testimony from Visco concerning his dealings with
Denaro, the court determined that he was responsible for more than
six kilograms of cocaine. It also concluded that Denaro should
receive a three level role adjustment rather than the four level
adjustment proposed by the PSR because he was a manager or
supervisor but not an organizer or leader of a criminal activity
that involved five or more participants. After making the
necessary adjustments required by the sentencing guidelines, the
court determined that Denaro’s sentencing range was 135 to 168
months. The court selected a sentence at the bottom of the range.
II.
A. The Guilty Plea
Denaro first argues that the district court erred in
denying his request to withdraw his guilty plea because the court
failed to properly advise him at the guilty plea hearing that he
could be subject to a 10-year mandatory minimum sentence.
This claim does not require extended analysis. Although
Fed. R. Crim. P. 11(b)(1) requires a court to “inform the defendant
of, and determine that the defendant understands” any mandatory
minimum penalty before it accepts a guilty plea, the record
demonstrates that the court complied with this requirement by
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advising Denaro of the government’s contention that he could be
subject to a 10-year mandatory minimum sentence. Given Denaro’s
statement at the plea hearing that he understood that he faced this
possibility and the absence of any other evidence in the record
suggesting that he was confused about the issue, the district court
acted properly in denying his request to withdraw his guilty plea.
B. The Indictment
Denaro next argues that the court attributed more cocaine
to him for sentencing purposes than the indictment permitted.2 His
argument proceeds in several steps. First, he notes that the
indictment alleged that the conspiracy involved “at least” 500
grams of cocaine, an amount that is sufficient to trigger a
possible 40-year maximum sentence under 21 U.S.C. § 841(b)(1)(B).
Second, because § 841(b)(1)(B) covers conspiracies that involve at
least 500 grams but no more than five kilograms of cocaine, he
reasons that the maximum amount of cocaine that the court could
attribute to him for any purpose is 4,999 grams.3 He then argues
2
Denaro casts his argument as a material variance claim but
this is clearly wrong. A material variance arises when the
indictment differs substantially from the proof offered at trial.
See, e.g., United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998).
Such claims become moot when a defendant avoids trial by pleading
guilty. For the reasons that we explain, however, Denaro’s claim
fails regardless of how it is characterized.
3
He attempts to bolster this portion of his argument by
noting that the version of the indictment he plead guilty to
superceded an indictment that charged an amount in excess of five
kilograms.
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that the proof varied materially from the indictment because the
court attributed more than six kilograms of cocaine to him at
sentencing.
This argument is fatally flawed because it is based on
the mistaken premise that a drug quantity allegation such as the
one at issue here caps the amount of cocaine that can be attributed
to a defendant at sentencing in the same way that it limits a
defendant’s maximum sentence under § 841(b)(1)(B). It does not.
See United States v. Goodine, 326 F.3d 26, 32-33 (1st Cir. 2003).
Instead, when an indictment alleges a drug quantity of “at least”
a specified amount, the sentencing court is free to attribute
whatever drug quantity the evidence warrants to a defendant as long
as the defendant’s sentence does not exceed the applicable
statutory maximum sentence. See United States v. Perez-Ruiz, 353
F.3d, 1, 15 (1st Cir. 2003). Accordingly, we reject Denaro’s
argument that the drug quantity specified in his indictment capped
the amount of cocaine that could be attributed to him at
sentencing.
C. The Drug Quantity Determination
Denaro next argues that the district court erred in
crediting Visco’s testimony concerning the amount of cocaine that
Denaro sold during the life of the conspiracy. This argument is a
non-starter. As we have held on many occasions, credibility
determinations at sentencing are the exclusive province of the
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district court. See United States v. Sanchez, 354 F.3d 70, 83 (1st
Cir. 2004); United States v. Conley, 156 F.3d 78, 85 (1st Cir.
1998); United States v. Sepulveda, 15 F.3d 1163, 1198 (1st Cir.
1993). The district court chose to believe Visco and his testimony
was sufficient to support the court’s drug quantity determination.
That ends the matter.
D. The Role in the Offense Adjustment
The district court gave Denaro a three-level enhancement
pursuant to U.S.S.G. § 3B1.1(b) because it determined that he was
a manager or supervisor of a criminal activity that involved five
or more persons. Denaro does not challenge the district court’s
determination that he was a manager or supervisor. Instead, he
faults the court for failing to specifically identify the
participants in the conspiracy and argues that the record doesn’t
support the court’s general finding that the conspiracy involved at
least five such participants.
Denaro’s first argument fails because we have determined
that a sentencing court need not make specific findings when
applying a role adjustment if “the record clearly reflects the
basis of the court’s determination.” See United States v. Marrero-
Ortiz, 160 F.3d 768, 779 (1st Cir. 1998). Only four persons in
addition to the defendant are needed to satisfy the five person
requirement, see United States v. Preakos, 907 F.2d 7, 10 (1st Cir.
1990), and the PSR specifically identified four of the defendant’s
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coconspirators as participants. Under these circumstances, the
court did not need to specifically name the participants to justify
its determination that the adjustment was warranted.
Denaro’s second argument fares no better. The PSR
provided a detailed description of the roles that each of the named
participants played in the conspiracy and Visco’s testimony at the
sentencing hearing served as further corroboration. The record
thus contains ample evidence to justify the court’s conclusion that
the four individuals named in the PSR were all active participants
in the conspiracy. Since Denaro does not challenge the court’s
conclusion that he was a manager or supervisor of the conspiracy,
the court’s three-level role in the offense adjustment was proper.
III.
We affirm the actions of the court below because Denaro
was informed of the applicable mandatory minimum sentence when he
agreed to plead guilty and the court’s sentencing determinations
were within its discretion.
Affirmed.
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