United States v. Platte

United States Court of Appeals
For the First Circuit

No. 08-1491

UNITED STATES OF AMERICA,

Appellee,

v.

JONATHAN PLATTE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Selya, Boudin and Lipez, Circuit Judges.

Paul J. Garrity on brief for appellant.
Michael J. Gunnison, Acting United States Attorney, and Aixa
Maldonado-Quiñones, Assistant United States Attorney, on brief for
appellee.

August 20, 2009
 SELYA, Circuit Judge. Defendant-appellant Jonathan

Platte challenges the constitutionality of his sentence and the

correctness of the sentencing court's underlying drug quantity

determination. We conclude that his arguments lack merit and,

therefore, affirm the sentence.

I. BACKGROUND

We glean the facts from the trial transcript, the

transcript of the disposition hearing, and the undisputed portions

of the presentence investigation report (PSI Report).

Early in 2004, police officers entered the appellant's

home in Wilton, New Hampshire. They were responding to a 911 call

placed by the appellant's erstwhile girlfriend, Cassandra Moynihan.

In a room above the garage, the officers saw drug paraphernalia in

plain view.

That observation fueled the issuance of an initial search

warrant and, a year later, a second search warrant. The searches

unearthed more drug paraphernalia, three pounds of marijuana,

roughly two ounces of cocaine, slightly more than one-quarter ounce

of heroin, three firearms, and large amounts of cash.

In due course, a federal grand jury returned a six-count

indictment charging the appellant with the commission of various

drug-trafficking and firearms offenses. On March 23, 2007, a jury

found the appellant guilty on five of the six counts. For present

purposes, we need concern ourselves with only one such count:

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conspiracy to possess with intent to distribute in excess of 500

grams of cocaine, 50 grams of crack cocaine, and 100 grams of

heroin.1 See 21 U.S.C. §§ 841(a)(1), 846.

Following the jury's verdict, the district court set out

to determine the guideline sentencing range (GSR) called for by the

advisory sentencing guidelines. It first calculated the drug

quantities attributable to the appellant. In making this

calculation, the court considered, inter alia, the PSI Report and

trial testimony given by three coconspirators. We briefly

summarize that testimony.

Moynihan, who lived with the appellant, said that their

relationship lasted from June 2003 through January 2004. She

testified that, during this interval, the appellant traveled to

Massachusetts at least once a week to buy drugs from "Carlos." She

would count the purchase money before each trip, and recalled that

the appellant acquired between $10,000 and $35,000 worth of drugs

on each occasion. She added that before each trip the appellant

would place an order for the drugs over the telephone, asking for,

say, "eight, six, four" — that is, eight ounces of cocaine, six

ounces of crack, and forty grams (four "fingers") of heroin. She

admitted that the quantities varied from time to time, sometimes

1
Four of the counts of conviction were grouped, including the
conspiracy count. See USSG §§3D1.2(c)-(d). Because the conspiracy
count yielded the highest offense level, that count determined the
appellant's base offense level for the grouped counts. See id.
§3D1.3.

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ranging higher and sometimes lower. On a different occasion,

Moynihan stated that a "few" ounces was the minimum amount of

powdered or crack cocaine purchased by the appellant on each trip.

Murdoch Hatfield, who worked in the appellant's drug-

trafficking enterprise and who had lived with him for approximately

two months, testified that the appellant was the largest

distributor of powdered cocaine, crack cocaine, and heroin in an

area that encompassed four New Hampshire communities. He confirmed

that the appellant bought drugs from Carlos once a week and

estimated that the appellant spent between $5,000 and $10,000 each

time (which Hatfield translated to at least twenty or thirty grams

of heroin, three ounces of powdered cocaine, and two ounces of

crack cocaine).

Robert Hudson assisted the appellant in acquiring and

peddling drugs from mid-2003 until the appellant's arrest in April

of 2005 (including a period when the appellant ran his business

from a jail cell). Hudson sometimes accompanied the appellant on

the drug-purchasing trips and witnessed the appellant buying, on

average, about four ounces of cocaine and one or two "fingers" of

heroin each time. Hudson noted that the appellant eventually

stopped selling crack cocaine but continued to sell powdered

cocaine and heroin until his arrest.

For sentencing purposes in cases involving the

distribution of a variety of different drugs, drug quantities are

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converted into their marijuana equivalents. USSG §2D1.1, cmt.

(n.10(B)). The PSI Report recommended that the appellant be held

responsible, over the course of the conspiracy, for one kilogram of

heroin (equivalent to 1,000 kilograms of marijuana), 17.69

kilograms of crack cocaine (equivalent to 118,523 kilograms of

marijuana), and five kilograms of powdered cocaine (equivalent to

1,000 kilograms of marijuana). Although the probation department

recommended these totals, the PSI Report noted that the listed

figures had been suggested by the government. It cautioned,

however, that these totals were less than the actual drug

quantities supported by the evidence.

The equivalency total adumbrated in the PSI Report —

120,523 kilograms of marijuana — yielded a base offense level (BOL)

of 38. See id. §2D1.1(c)(1) (drug quantity table). The probation

department recommended a four-level increase because the appellant

was the organizer and leader of a criminal enterprise involving

five or more participants. Id. §3B1.1(a). Given the appellant's

adjusted offense level (42) and his criminal history category (V),

his GSR, without regard to the weapons charge,2 was 360 months to

life imprisonment. Id. Ch.5, Pt.A (sentencing table).

2
We make this qualification because the ungrouped count of
conviction — a count that charged possession of a firearm in
furtherance of a drug-trafficking offense — required the imposition
of a five-year term of incarceration running consecutively to any
sentence on the grouped counts. See 18 U.S.C. § 924(c); USSG
§2K2.4(b). The appellant has not challenged this aspect of his
sentence.

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 At sentencing, drug quantity was front and center. The

appellant advanced two objections relating to that subject

(described infra). The sentencing court substantially overruled

both objections. The court, however, did reduce the overall drug

quantity below what the government and the PSI Report had

recommended. In doing so, the court stressed its desire to take a

"conservative" approach.

To be specific, the court focused exclusively on the

quantities of crack cocaine attributable to the appellant. It

largely credited Moynihan's testimony and found the appellant

responsible for a total of 5.9 kilograms of crack cocaine.

In arriving at this figure, the court assumed that the

appellant purchased six ounces (170.1 grams) of crack cocaine per

week. The court then multiplied the six-ounce amount by 104 weeks

(the approximate duration of the conspiracy), and divided the

product (17.69 kilograms) by three in order to ensure a

conservative estimate of the appellant's culpability.3

Because 4.5 kilograms are sufficient to trigger the

highest available BOL (38), the court started with that BOL. It

followed the other recommendations contained in the PSI Report

anent the managerial role adjustment and the appellant's criminal

3
The use of the 104-week figure is another indicium of the
sentencing court's conservative approach. The court found that the
conspiracy actually lasted for twenty-six months — a period eight
to ten weeks longer than the number of weeks used by the court as
the multiplicand.

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history category, set the GSR accordingly, and imposed a variant

below-range sentence of 240 months in prison. The court also

imposed a mandatory five-year consecutive sentence for the firearms

count. See 18 U.S.C. § 924(c); see also note 2, supra. This

timely appeal followed.

II. DISCUSSION

We confront here two claims of sentencing error, each

seasonably raised in the lower court. The claims are, therefore,

duly preserved for appeal. See United States v. Martínez-Vargas,

321 F.3d 245, 249 (1st Cir. 2003). The first — a constitutional

claim — raises a purely legal issue, so our review is de novo.

United States v. Pierre, 484 F.3d 75, 88 (1st Cir. 2007). The

second — a claim that contests the correctness of the drug quantity

calculation — denigrates the sentencing court's factfinding, so our

review is for clear error. United States v. Ventura, 353 F.3d 84,

87 (1st Cir. 2003).

A. The Apprendi Claim.

We start with the appellant's constitutional claim. In

substance, he argues that the Fifth and Sixth Amendments require

that, for sentencing purposes, a jury determine drug quantities

beyond a reasonable doubt. In support of this proposition, the

appellant relies chiefly on the Supreme Court's landmark decision

in Apprendi v. New Jersey, 530 U.S. 466, 477 (2000), which holds

that, under the Constitution, a criminal defendant may be convicted

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or sentenced only after a jury has found him guilty beyond a

reasonable doubt of every element of the charged offense. Building

on this foundation, the appellant posits that, by determining drug

quantity under a preponderance-of-the-evidence standard and without

a matching jury finding, the district court transgressed the

Apprendi principle.

To be sure, the Apprendi Court declared that "[o]ther

than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt." Id. at

490. But the Apprendi principle is limited to facts that increase

the penalty for a crime beyond the prescribed statutory maximum

that accompanies the jury's verdict. United States v. Booker, 543

U.S. 220, 244 (2005); Apprendi, 530 U.S. at 490. Given this

limitation, we have held with monotonous regularity that as long as

a defendant's sentence comes within the maximum established by the

jury's verdict, a sentencing court's preponderance-of-the-evidence

factfinding, even though it may pave the way for a stiffer sentence

within that maximum, does not violate the Apprendi principle. See,

e.g., United States v. Stierhoff, 549 F.3d 19, 29 (1st Cir. 2008);

United States v. Arango, 508 F.3d 34, 41 (1st Cir. 2007).

We have applied this reasoning in cases, like this one,

in which drug quantity has an important influence on the GSR and,

thus, on the sentence imposed. In particular, we have ruled that

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a sentencing court may lawfully determine drug quantity by a

preponderance of the evidence and use the quantity so determined in

constructing a defendant's sentence as long as the sentence

ultimately imposed does not exceed the maximum sentence made

applicable by the jury's verdict and the statute of conviction.

See, e.g., Pierre, 484 F.3d at 88; United States v. Yeje-Cabrera,

430 F.3d 1, 17-18 (1st Cir. 2005); United States v. Eirby, 262 F.3d

31, 36-37 (1st Cir. 2001); United States v. Caba, 241 F.3d 98, 101

(1st Cir. 2001).

These decisions are controlling here. In a multi-panel

circuit, on-point opinions of previous panels normally are binding

on newly constituted panels. See Muskat v. United States, 554 F.3d

183, 189 (1st Cir. 2009); United States v. Wogan, 938 F.2d 1446,

1449 (1st Cir. 1991). Although that rule admits of a few narrow

exceptions (in the event, say, of an intervening Supreme Court

decision or of a statutory overruling), there is no plausible basis

for any exception here. Our prior interpretation of Apprendi is,

therefore, binding.

That ends this phase of our discussion. Based on the

jury's verdict, the statutory maximum for the offense of conviction

is life imprisonment. 21 U.S.C. § 841(b)(1). Because the district

court imposed a sentence well short of life imprisonment, its

preponderance-of-the-evidence factfinding on the issue of drug

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quantity was not constitutionally improvident. Accordingly, we

reject the claim of Apprendi error.

B. The Drug Quantity Finding.

We move next to the second claim of sentencing error: the

appellant's contention that the district court committed clear

error in determining the quantity of drugs attributable to him.

Specifically, the appellant asserts that the court relied too

heavily on the testimony of coconspirators who lacked credibility.

As a fallback, he asserts that the court should have used the lower

estimates made by Hudson and Hatfield rather than giving primacy to

Moynihan's testimony.

As said, we review a sentencing court's factual findings

anent drug quantity for clear error. Ventura, 353 F.3d at 87.

Absent a mistake of law — and we discern none here — we must honor

such findings "unless, on the whole of the record, we form a strong,

unyielding belief that a mistake has been made." Cumpiano v. Banco

Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990).

The calculation of drug quantities is not an exact

science, and a sentencing court charged with that responsibility

need not be precise to the point of pedantry. Rather, a sentencing

court may make reasoned estimates based on historical data. See

Ventura, 353 F.3d at 88; United States v. Morillo, 8 F.3d 864, 871

(1st Cir. 1993); United States v. Sklar, 920 F.2d 107, 113 (1st Cir.

1990).

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 In conducting this tamisage, credibility determinations

are part of the sentencing court's basic armamentarium. The court

may, if it chooses, credit the testimony of one or more

coconspirators. See, e.g., Pierre, 484 F.3d at 88; Ventura, 353

F.3d at 88.

Faced with divergent estimates of drug quantity, a

sentencing court is entitled to make judgments about veracity and

reliability and to pick and choose among the divergent estimates.

See, e.g., United States v. Whiting, 28 F.3d 1296, 1304-06 (1st Cir.

1994); Morillo, 8 F.3d at 871. In the last analysis, a reviewing

court must cede a sentencing court wide latitude in determining the

probative value of conflicting testimony. See United States v.

Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992).

We add, moreover, that testimony need not be exact in

order for it to be used in the calculation of drug quantity. See

United States v. Pérez-Ruiz, 421 F.3d 11, 15-16 (1st Cir. 2005).

Nevertheless, imprecision in the available evidence suggests that

a sentencing court should make conservative estimates based on the

totality of the evidence. See Morillo, 8 F.3d at 871; see also

Whiting, 28 F.3d at 1304.

At sentencing in this case, the district court canvassed

the evidence and found that the appellant had assembled a well-

organized drug distribution ring that from time to time employed

from five to twelve people, did business for over two years, and

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served no fewer than four communities. Although each of the

testifying coconspirators gave slightly differing estimates of drug

quantities, their testimony was generally consistent. In any event,

the court was careful to pick and choose.

Importantly, the court used an array of techniques to

mitigate any risk of overstatement. For one thing, it took the

lower end of most of the estimates upon which it relied — a practice

that we previously have approved. See Ventura, 353 F.3d at 88; see

also Sklar, 920 F.2d at 113 (urging sentencing courts, in making

such approximations, "to err on the side of caution" (quoting United

States v. Walton, 908 F.2d 1289, 1301 (6th Cir. 1990))). For

another thing, the sentencing court calculated drug quantity for

only one of the distributed drugs (crack cocaine), despite

plenitudinous evidence that other drugs (powdered cocaine and

heroin) had been purveyed in significant amounts. Third, the court

left a wide margin for error; it only took into account one-third

of the crack cocaine supported by a conservative view of Moynihan's

testimony. Fourth, and finally, it artificially truncated the

duration of the conspiracy. See note 3, supra. These safeguards

still left the appellant responsible for an amount of crack cocaine

(5.9 kilograms) well in excess of the 4.5 kilograms needed to place

his BOL at 38.

The fact that the sentencing court found Moynihan's

testimony more reliable than that of other coconspirators does not

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cast doubt on this finding. Moynihan lived with the appellant for

a lengthy period of time and was intimately familiar with his drug-

trafficking operation. Furthermore, she counted out the drug-

purchase money before each buying trip. Last — but far from least

— the sentencing judge had presided over the appellant's trial, and

had seen and heard the witnesses. Thus, he was in an excellent

position to gauge their relative credibility. United States v.

Huddleston, 194 F.3d 214, 224 (1st Cir. 1999). On this record,

giving primacy to Moynihan's testimony was well within the judge's

discretion.4 See, e.g., United States v. Rodríguez, 525 F.3d 85,

108 (1st Cir. 2008).

To say more on this point would be supererogatory. We are

fully satisfied that the drug quantity finding was supported by a

sensible (though not inevitable) view of the record and rested on

permissible (though not inevitable) approximations. That finding

was not clearly erroneous. See United States v. Ruiz, 905 F.2d 499,

508 (1st Cir. 1990) (explaining that "where there is more than one

plausible view of the circumstances, the sentencing court's choice

among supportable alternatives cannot be clearly erroneous").

4
We note that this claim of error implicates the intersection
between credibility and drug quantity determinations. At that
crossroads, a sentencing court's discretion to make informed
choices is wide. See, e.g., Ventura, 353 F.3d at 88; Whiting, 28
F.3d at 1304. The court is not required to accept at face value
the lowest estimate in the record. See United States v. Laboy, 351
F.3d 578, 584 (1st Cir. 2003); United States v. Tracy, 989 F.2d
1279, 1286 n.5 (1st Cir. 1993).

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

we reject the appellant's claims of sentencing error.

Affirmed.

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