USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2124
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO REYES,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Feinberg,* Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Randy Olen, by Appointment of the Court, with whom John M.
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Cicilline, was on brief for appellant.
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Margaret E. Curran, Assistant United States Attorney, with
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whom Lincoln C. Almond, United States Attorney and Kenneth P.
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Madden, Assistant United States Attorney, were on brief for
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appellee.
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August 30, 1993
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* Of the Second Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Pursuant to a plea
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agreement, defendant-appellant Pedro Reyes pled guilty to one
count of conspiracy to distribute and to possess with intent to
distribute cocaine and one count of distribution of cocaine. In
this appeal, Reyes challenges the district court's calculation of
his guideline sentencing range ("GSR"), contesting the inclusion,
as relevant conduct, of transactions involving his codefendant,
which were the subject of charges dropped pursuant to the plea
agreement. Finding no clear error, we affirm.
I
I
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Because Reyes pled guilty, we distill the relevant
facts from the Pre-Sentence Report ("PSR") and the transcript of
the sentencing hearing. United States v. Castellone, 985 F.2d
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21, 22 (1st Cir. 1993). Reyes and codefendant Jos Tav rez-
Tolentio ("Tav rez") were the subjects of a combined Drug
Enforcement Administration ("DEA") and local law enforcement drug
investigation.
On the evening of Monday, January 27, 1992, West
Warwick detective Sergeant Peter Appollonia met Tav rez outside a
building at 61 Whipple Street in Providence, Rhode Island. The
two men proceeded to a second floor apartment where they met
Reyes. Electric Company records indicate that Reyes leased the
apartment. Once inside, Tav rez produced a bag containing 27.4
grams of cocaine from the bathroom; Reyes and Appollonia
negotiated the price of this transaction and a quantity discount
for a future sale of two ounces of cocaine. Appollonia then
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inquired if he could purchase the two ounces on Wednesday and
Reyes told Appollonia to come by at anytime. The transaction
concluded when Appollonia paid Reyes $900 for the 27.4 grams and
Reyes counted the money.
The next day, January 28, 1992, DEA Special Agent
Botelho met Tav rez at 1455 Mineral Spring Avenue in North
Providence. Tav rez brought Botelho to apartment sixteen where
they met a man known as "Tony." Tav rez gave Botelho 124 grams
of cocaine and Botelho paid him $3,100. Shortly after Botelho
entered the building on Mineral Street, DEA agents observed Reyes
drive his BMW, accompanied by a grey Oldsmobile, from his 61
Whipple Street address to the building on Mineral Street. When
the two vehicles arrived, the Oldsmobile proceeded to the rear of
the building. Reyes parked nearby, exited his vehicle, walked
around the parking lot adjacent to the Mineral Street building,
and returned to his car where he waited. Shortly before the
transaction between Botelho and Tav rez was completed, Reyes and
the Oldsmobile departed the area and returned to 61 Whipple
Street. The DEA interpreted Reyes' actions as counter-
surveillance for the deal occurring above in apartment sixteen.
On Saturday, February 1, 1992, at approximately
5:30 p.m., detective Appollonia returned to 61 Whipple Street to
purchase more cocaine. He encountered Reyes entering a Ford
Escort and inquired whether Reyes had cocaine for sale. Reyes
directed Appollonia to return later, at which time he, Reyes,
would have the cocaine. Reyes then departed. At approximately
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6:00 p.m., Reyes returned to 61 Whipple Street in his BMW,
followed by the grey Oldsmobile, and entered the building.
Appollonia returned at 6:07 p.m. and met Tav rez in the second
floor apartment. Reyes was not present. Tav rez left the
apartment and returned with 54.9 grams of cocaine. Appollonia
inquired whether Reyes had informed Tav rez that the price was
set at $1,700, representing the quantity discount previously
negotiated. Tav rez indicated that Reyes had done so.
Appollonia paid for the cocaine and left the premises.
On Monday, February 10, 1992, at approximately 1:15
p.m., agent Botelho returned to 1455 Mineral Street to buy more
cocaine. He met Tav rez, who agreed to sell him four and one-
half ounces of cocaine. Tav rez left Mineral Street and drove in
a red Toyota wagon registered to Reyes to 61 Whipple Street.
Approximately 35 minutes later, Tav rez returned to the
Mineral Street address. Botelho observed Tav rez and Reyes
inspecting Botelho's car, which was parked in the adjacent lot.
Tav rez again met with Botelho and claimed that he would have to
go to South Providence to obtain the cocaine. Tav rez departed a
second time, and the Toyota and Reyes' BMW went to 61 Whipple
Street. DEA agents observed Tav rez, Reyes and an unidentified
man entering the building. Tav rez then returned to Mineral
Street with 124.1 grams of cocaine. Botelho alerted other agents
and Tav rez was arrested. Later, Reyes was arrested at 61
Whipple Street, where the police found .18 grams of cocaine.
Count one charged that from a time unknown until
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February 10, 1992, Reyes and Tav rez conspired to distribute, and
to possess with intent to distribute, cocaine, in violation of 21
U.S.C. 841(a)(1) and 846. Counts two, three, and four charged
Reyes and Tav rez with distribution of cocaine on January 27 and
28, and February 1, 1992, in violation of 21 U.S.C. 841(a)(1),
841(b)(1)(B), and 18 U.S.C. 2. Count five charged Reyes and
Tav rez possessed cocaine with intent to distribute it on
February 10, 1992, in violation of 21 U.S.C. 841(a)(1),
841(b)(1)(C), and 18 U.S.C. 2. Reyes pled guilty to counts one
and two and the government dropped the charges in counts three,
four, and five.
At sentencing, the district court determined the GSR
based on the quantity of drugs involved in all the transactions,
including amounts related to the dropped charges. The quantity
therefore was 330.58 grams, which resulted in a base offense
level of 22. United States Sentencing Guidelines 2D1.1(c)(11)
(Drug Quantity Table). The judge adjusted the base offense level
downward by two levels for acceptance of responsibility.
U.S.S.G. 3E1.1(a). With an offense level of 20 and a criminal
history category of I, the GSR was 33 to 41 months. The judge
sentenced Reyes to 33 months.
On appeal, Reyes contests the calculation of the GSR,
arguing that he should be sentenced based on the 27.4 grams of
cocaine involved in the January 27 transaction to which he pled
guilty. Based on a 27.4 grams, the base offense level would be
14, yielding an offense level of 12 after reduction for
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acceptance of responsibility. Reyes contends therefore that the
GSR ought to have been 10 to 16 months.
II
II
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For the purposes of sentencing, the key factor is the
quantity of drugs involved. That quantity is "the sum of the
charged conduct to which defendant pleads plus his 'relevant'
uncharged conduct." United States v. Bradley, 917 F.2d 601, 604
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(1st Cir. 1990). "The drug quantity is to be derived from all
acts 'that were part of the same course of conduct or common
scheme or plan as the offense of conviction.'" United States v.
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Garc a, 954 F.2d 12, 15 (1st Cir. 1992) (quoting U.S.S.G.
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1B1.3(a)(2)). "This court has repeatedly upheld the inclusion as
relevant conduct of acts either not charged or charged but
dropped." Id. (citing cases). In the case of jointly undertaken
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criminal activity (whether or not charged as a conspiracy),
relevant conduct includes all acts reasonably foreseeable by the
defendant and committed in furtherance of the jointly undertaken
activity. U.S.S.G. 1B1.3, comment. (n.1); Castellone, 985 F.2d
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at 24; Garc a, 954 F.2d at 15. To include disputed transactions
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as relevant conduct, the government must prove by a preponderance
of the evidence a sufficient nexus between the conduct underlying
the dropped charges and the offense of conviction. Castellone,
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985 F.2d at 24; United States v. Sklar, 920 F.2d 107, 110 (1st
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Cir. 1990). We accord considerable deference to the district
court's determination that drug transactions in dropped charges
form part of the same course of conduct as counts of conviction
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and, absent mistake of law, will set aside those findings only if
clearly erroneous. Castellone, 985 F.2d at 24; Garc a, 954 F.2d
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at 15.
Reyes contends that the government did not prove by a
preponderance of the evidence a sufficient nexus between the
charges of convictions and the January 28, February 1, and
February 10, 1992 transactions. Reyes emphasizes that he was not
physically present during these transactions and that the
district court found that Tav rez operated his own heroin concern
without Reyes' participation. Reyes asserts that, like the
heroin business, Tav rez was distributing cocaine without Reyes'
knowledge and in furtherance of only Tav rez' individual
interests.
With respect to the February 1, and February 10, 1992
drug deals, Reyes' assertions are ridiculous. To begin with,
Reyes indicated at the January 27, drug sale, to which Reyes pled
guilty, that detective Appollonia could come by anytime to
purchase cocaine. The natural inference is that Reyes operated a
cocaine distribution business. On February 1, detective
Appollonia encountered Reyes outside Reyes' 61 Whipple Street
address, and asked to purchase cocaine. Reyes asked Appollonia
to return later when the cocaine arrived. Reyes left the
building and returned. Moments later, Appollonia entered Reyes'
second floor apartment and purchased cocaine from Tav rez. Reyes
was not observed leaving the building. The district judge could
fairly infer that Reyes had brought the cocaine back to Whipple
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Street, allowing Tav rez to conduct the actual sale.
The February 10 transaction is similarly linked to
Reyes. Although the drug buy involved a different law
enforcement agent, Botelho, and occurred at a different address,
1455 Mineral Street, Tav rez drove a vehicle registered to Reyes
to Reyes' apartment; returned with Reyes to Mineral Street, where
the two observed Botelho's vehicle and the surrounding area;
again returned to Whipple Street with Reyes; and finally went
back to Mineral Street to sell Botelho the cocaine. This series
of actions supports an inference that Tav rez had to clear the
sale with Reyes, that the two conducted an investigation of
Mineral Street before proceeding, and that Reyes provided the
cocaine from the Whipple Street address.
The evidence connecting Reyes to the January 28
transaction admittedly is less convincing. When considered with
the three other drug deals, however, we cannot conclude that the
district court's inclusion of this evidence as relevant conduct
was clearly erroneous. The other three transactions support the
inference that Tav rez and Reyes worked closely together on
cocaine sales and that Reyes was the supplier. Given the
reconnaissance mission during the February 10 transaction, the
visit paid to the parking lot at Mineral Street by Reyes in his
BMW and the grey Oldsmobile during the January 28 deal would also
appear to be surveillance. The district court could reasonably
infer from all the evidence that the conduct underlying the
dropped charges formed part of the same course of conduct. As we
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made clear in United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.
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1990), "where there is more than one plausible view of the
circumstances, the sentencing court's choice among supportable
alternatives cannot be clearly erroneous." The district court
therefore was entitled to include the quantities of cocaine from
all the transactions when determining the GSR.
Finding no clear error, we affirm.
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