USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 95-1883
UNITED STATES OF AMERICA,
Appellee,
v.
LOUIS ANDRADE,
Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S.District Judge] __________________
____________________
Before
Torruella, Chief Judge, ___________
Cyr and Lynch, Circuit Judges. ______________
____________________
Daniel J. Johnedis on brief for appellant. __________________
Donald K. Stern, United States Attorney, and Ralph F. Boyd, Jr., _______________ ___________________
Assistant United States Attorney, on brief for appellees.
____________________
August 26, 1996
____________________
LYNCH, Circuit Judge. Louis Andrade was convicted LYNCH, Circuit Judge. _____________
of possessing cocaine base with intent to distribute. He was
sentenced to 168 months in prison. He appeals from both his
conviction and his sentence.
Andrade's main argument is that the evidence seized
when the car in which he was riding was stopped by officers
from the Boston Anti-Gang Violence Unit should have been
suppressed. He says that the ostensible reason for the stop,
a traffic violation, was only a pretext to search the car in
hope of proving more serious charges. For these charges, he
says, there then existed no probable cause or reasonable
suspicion. His argument is foreclosed by the Supreme Court's
decision in Whren v. United States, 116 S. Ct. 1769 (1996), _____ _____________
decided after this case was initially briefed. He also
argues that the 14.21 grams of cocaine base with which he was
caught was so small an amount that it is unreasonable to
infer that he had the needed intent to distribute. This
argument is without merit. As for Andrade's challenges to
his sentence, his argument based on the distinction in
severity of sentences between crack cocaine and powder
cocaine is foreclosed. That distinction does not permit a
downward departure in sentence. There was no error in the
enhancement of his sentence for his attempt to shoot one of
the arresting officers.
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I
We recite the facts as the jury could reasonably
have found them. Andrade was a passenger in a car which made
an ill-considered and illegal U-turn in front of oncoming
traffic on Columbia Road in Boston on February 20, 1994. This
maneuver was observed at around 8:00 p.m by Officers Byrne
and Linskey of the Anti-Gang Violence Unit. Byrne and
Linskey were patrolling the area in an unmarked car driven by
Officer Freeman of the same unit. The Unit gathers
intelligence on gangs, leading to arrests of gang members in
the Roxbury, Mattapan, and Dorchester areas of Boston. The
Unit uses motor vehicle violations as a tool to investigate
gang activities.
The officers followed the car, and saw three adults
in the vehicle. They also saw that the car had a broken
taillight. As the car slowed to a stop in front of a
building on Seaver Street, the officers turned on their wig-
wag light and then approached the car on foot. Officer
Freeman identified himself and asked the driver, Sandra
Wright, for her license, while Officer Linskey detained the
front seat passenger, Terrell Andrade (Louis Andrade's
brother), who had emerged from the car. As Officer Freeman
shone a flashlight into the car, he saw, in the center of the
front seat, a plastic bag containing an off-white, rock-like
substance which looked like crack cocaine. He leaned into
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the car and picked up the bag and then signalled to the other
officers to handcuff Wright and Terrell Andrade.
Officer Freeman then went to open the right rear
passenger door, next to where Louis Andrade was sitting.
While Officer Freeman spoke to Andrade, he saw that Andrade
was sitting stiffly with his left hand behind his back.
Andrade ignored Officer Freeman's several commands that he
take his hand from behind his back. Drawing their service
pistols, Officers Freeman and Byrne yelled at Andrade to
remove his hand from behind his back. Andrade pulled his
left hand from behind his back and threw out, onto the
street, a bag containing a substance which appeared to be
crack cocaine. When Officer Freeman then attempted to
handcuff Andrade, Andrade lurched backward into the car and
tried to reach down to the floor. As Officer Freeman leaned
into the car toward Andrade, he suddenly saw a gun in
Andrade's hand. He screamed "gun," pushed himself away from
Andrade, saw a flash, and heard a noise. Believing Officer
Freeman had been shot (he was not), Officer Byrne fired a
single shot at Andrade, hitting him in the leg and ending the
confrontation.
Officer Linskey then pulled Andrade out of the car
and asked him where the gun was. Andrade denied having a
gun, but Sandra Wright yelled "check his ankles; check his
ankles." The officers did so and found the gun, not on Louis
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Andrade's ankle, but on the floor of the car near to where
Andrade had been sitting. A spent cartridge was found jammed
in the gun's chamber, indicating that the weapon had been
fired, and, fortuitously, that no additional rounds could be
fired. An upset Sandra Wright continued to scream "the dude
in the back shot at a cop; the dude in the back shot at a
cop; I could have gotten shot."
Accompanying Louis Andrade on the ride to the
hospital, Linskey observed Andrade attempting to remove
$260.00, in mostly ten and twenty dollar bills, from his
pants pocket. Linskey later found another plastic bag in the
same pocket. That bag, like the others, contained cocaine
base ("crack"); the two bags connected to Louis Andrade
totalled some 14.21 grams in weight. That amount of cocaine
is enough for 140 "jums" (doses) or "dime bags."
In a four count indictment, Andrade was charged
with possession with intent to distribute cocaine base, with
unlawful possession by a convicted felon of a firearm and
ammunition, with possession of a firearm bearing an
obliterated serial number, and with using a firearm during
and in relation to a drug trafficking crime. The jury
convicted on the drug possession count under 21 U.S.C.
841(a)(1) and deadlocked on the firearms counts. The
district court denied subsequent motions for judgment of
acquittal and for a new trial. Andrade was sentenced to 168
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months in prison and four years supervised release. After
sentencing, the court dismissed the firearms counts on the
government's motion.
II
Andrade makes three attacks on his conviction. He
argues that the trial judge erroneously denied his motion to
suppress the evidence seized during the "warrantless,
pretextual traffic stop of the car in which defendant was a
passenger." He also says that the evidence of intent to
distribute the drugs was insufficient to support a
conviction, and that the thinness of that evidence at least
entitles him to a new trial. Although ably briefed, none of
these arguments prevails.
A. The Suppression Motion _________________________
Andrade filed a motion to suppress the evidence
seized during the car stop on the theory that the stop was
pretextual. The district court held an evidentiary hearing
and determined the stop was not pretextual but was made, as
the officers said, to investigate why the car had made a
"sharp, harsh U-turn" into oncoming traffic. The court later
modified its ruling to note that there was evidence to
suggest a second motive for the stop, but that under the
objective test of United States v. Miller, 589 F.2d 1117 (1st _____________ ______
Cir. 1978), cert. denied, 440 U.S. 958 (1979), any mixed _____ ______
motive was irrelevant. Our review of the ultimate conclusion
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as to whether the Fourth Amendment was violated is de novo. __ ____
Ornelas v. United States, 116 S. Ct. 1657, 1662 (1996). _______ _____________
In support of his claim that the motion to suppress
should have been granted, Andrade relies on a theory firmly
rejected by the Supreme Court in Whren. In Whren, the _____ _____
Supreme Court affirmed the denial of a motion to suppress
drugs seized when the police stopped a car for a traffic
violation. The Court held that the temporary detention of a
motorist upon probable cause to believe the traffic laws have
been violated does not transgress the Fourth Amendment's
prohibition on unreasonable seizures, even if the officer
would not have stopped the motorist absent some additional
law enforcement objective. Whren, 116 S. Ct. at 1774. _____
Because the Fourth Amendment allows certain actions to be
taken in certain circumstances, regardless of motives, the
Court rejected any inquiry into the officers' subjective
intent or into what a "reasonable officer" would have done in
similar circumstances. Id. at 1775. The Court thus ___
foreclosed any argument that ulterior motives can invalidate
an otherwise justified traffic stop. Id. at 1774. ___
Here, the illegal U-turn plainly provided probable
cause to stop the car for violating the traffic laws, and
Andrade does not argue otherwise. Under Whren, the inquiry _____
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stops there, as does Andrade's appeal on this point.1 Id.; __
see also United States v. Abernathy, 83 F.3d 17, 19 (1st Cir. ___ ____ _____________ _________
1996) (officers on undercover investigatory narcotics detail
may lawfully make traffic violation stop).
B. Evidence of Intent to Distribute ___________________________________
Andrade's remaining attacks are premised on his
contention that the evidence did not show that he had an
intent to distribute the cocaine base, even if the evidence
were sufficient to show that he did possess it for personal
use. He challenges the district court's denial of both his
Rule 29 motion for a judgment of acquittal and his Rule 33
motion for a new trial.
1. Motion for Judgment of Acquittal ________________________________
In a sufficiency challenge, we determine whether,
drawing all reasonable inferences in favor of the
prosecution, a rational jury could find guilt beyond a
reasonable doubt. United States v. Luciano-Mosquera, 63 F.3d _____________ ________________
____________________
1. In his reply brief, Andrade argues that the potential for
discriminatory treatment of members of minority communities
requires courts to invalidate pretextual traffic stops. He
suggests that circumstantial evidence, particularly Officer
Byrne's description of the occupants of the car as "black,"
indicates that racial animus was at work here. This line of
argument was rejected in Whren, where the Supreme Court _____
pointed out that "the constitutional basis for objecting to
intentionally discriminatory application of the laws is the
Equal Protection Clause, not the Fourth Amendment." Whren, _____
116 S. Ct. at 1774. In any event, we need not pursue this
issue further; it was not raised in Andrade's principal brief
to this court and is therefore waived. See United States v. ___ ______________
Edgar, 82 F.3d 499, 510 (1st Cir.), petition for cert. filed, _____ ________________________
65 U.S.L.W. 3110 (U.S. July 16, 1996)(No. 96-5082).
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1142, 1149(1st Cir. 1995), cert. denied, 116 S. Ct. 1879 ____________
(1996).
It would, of course, be unusual for there to be
direct evidence of a defendant's intent to distribute the
drugs in his possession where the defendant is not observed
dealing drugs but instead is merely found with the drugs. As
a result, juries, and courts, have to decide what inferences
may be reasonably drawn from the available circumstantial
evidence. See United States v. Echeverri, 982 F.2d 675, 678 ___ _____________ _________
(1st Cir. 1993). That evidence may include information about
the amounts and types of the drugs possessed and about the
accompanying accoutrements, such as the sums of money also
found, whether there is drug weighing, cutting, and packaging
paraphernalia, whether a weapon is used, and the like. See, ___
e.g., id. at 678-79 (considering layout of defendant's ____ ___
apartment, amount of cocaine found, and the presence of a
scale and a ledger as corroborative of intent).
To support his insufficiency argument, Andrade
relies upon United States v. Valerio, 48 F.3d 58 (1st Cir. _____________ _______
1995). There, this court vacated a conviction for possession
of powder cocaine with intent to distribute because the
evidence was insufficient to prove that the defendant knew
about the large quantities of cocaine which were hidden in an
apartment in which she was a short-term guest. Id. at 64. ___
The court found that the defendant could only have been found
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to be aware of 14.83 grams of cocaine hidden in her baby's
shoe; this was "not large enough" a quantity to support an
inference of distributive intent. Id.2 ___
This is a different case and we have no trouble
affirming the jury verdict. To start, this case involves not
cocaine powder, but cocaine base or "crack." The cases on
which Andrade relies involve powder cocaine (cocaine
hydrochloride), not crack cocaine (cocaine base) which is
more potent and is sold in much smaller doses. The
legislative history of the federal drug laws repeatedly
indicates that crack's greater potency is a primary reason
that offenses involving crack receive higher penalties than
do those involving similar amounts of powder cocaine. See, ___
e.g., United States v. Buckner, 894 F.2d 975, 978-80 (8th ____ ______________ _______
Cir. 1990)(compiling statements of members of Congress and
hearing testimony of drug abuse experts). For example, when
____________________
2. Andrade also draws our attention to United States v. _____________
Martinez, 44 F.3d 148 (2d Cir. 1995), in which a panel of the ________
Second Circuit (over Judge Walker's dissent) initially found
the evidence of intent to distribute insufficient where the
defendant possessed 3.5 grams of powder cocaine, as well as
one-half ounce of "cut," a one gram scale, and a gun. Id. at ___
151. However, the panel later reconsidered its disposition
of the case and decided to affirm Martinez's conviction
because "any amount of drugs, however small, will support a
conviction when there is additional evidence of intent to
distribute." See Martinez v. United States, 54 F.3d 1040, ___ ________ ______________
1043 (2d Cir.), cert. denied, 116 S. Ct. 545 (1995). The ____________
"cut," the scale, and particularly the firearm, which "by
itself provided strong evidence of intent to distribute,"
supported the inference that the defendant was engaged in
drug trafficking. Id. ___
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Congress disapproved proposed Sentencing Guidelines
amendments that would have equalized the penalties for
offenses involving crack and powder cocaine, the House Report
noted the "unique nature of the crack cocaine trade, which
often entails trafficking in much smaller quantities than
with powder cocaine." H.R. Rep. No. 272, 104th Cong., 1st
Sess. 3 (1995). Thus, whether or not 14.21 grams is a
"small" amount of powder cocaine, it is not a small amount of
crack cocaine.
Nor was unadorned evidence of amount all that the
jury had to go on. The government's expert witness, Sgt.
Kevin Buckley, who had been involved in more than 1000 drug
investigations, testified that the amount of crack cocaine
Andrade possessed could make more than 140 "jums," with a
street value of at least $1400; that he had never seen a mere
user with more than 8-10 "jums" at a time; that mere users
typically use all of their cash to feed their habit; that a
mere user usually smokes all of the crack he can obtain right
away; and that, in Boston, crack is usually sold in $10 and
$20 bags. Also, Andrade had no implements with him to smoke
the crack. This was enough, even without consideration of
the presence of the firearm. The jury had ample evidence
from which to draw the inference of intent to distribute.
Cf. United States v. Bergodere, 40 F.3d 512, 518 (1st Cir. ___ _____________ _________
1994)(affirming intent finding where total value of heroin
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seized was $1500 and gun and drug packaging materials were
found), cert. denied, 115 S. Ct. 1439 (1995). The inferences ____________
drawn by the jury were thus proper and reasonable, and we
affirm the district court's denial of Andrade's Rule 29
motion.
2. Motion for a New Trial _________________________
Andrade asks that, even if we find the evidence
sufficient to sustain the jury verdict, we grant him a new
trial in the interest of justice. See Fed. R. Crim. P. 33.3 ___
However, "the decision to grant or deny a new trial is
committed to the sound discretion of the district court."
United States v. Soto-Alvarez, 958 F.2d 473, 479 (1st Cir.), _____________ ____________
cert. denied, 506 U.S. 877 (1992). Thus, we will affirm the ____________
district court's denial of a new trial unless there has been
a "manifest abuse of discretion." United States v. Tibolt, _____________ ______
72 F.3d 965, 972 (1st Cir. 1995), cert. denied, 116 S. Ct. ____________
2554 (1996); see also 3 Charles A. Wright, Federal Practice & ________ __________________
Procedure: Criminal 559 (2d ed. 1982)(appellate court ___________________
____________________
3. The government argues that Andrade's motion for a new
trial was untimely, and that the court thus lacks
jurisdiction to consider it. However, on December 22, 1994,
just two days after the guilty verdict, defendant's counsel
filed a motion for leave to file a Rule 33 motion at a later
date; the district judge allowed that motion. Rule 33
expressly permits the court to extend the time limit for
filing a motion. Motions shall be made "within 7 days after
verdict or finding of guilty or within such further time as ____________________________
the court may fix during the 7-day period." Fed. R. Crim. P. _________________
33 (emphasis added). Andrade's Rule 33 motion was thus
timely, and we reach the merits of this claim.
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"properly defers" to trial court on motion for a new trial).
The remedy of a new trial is rarely used; it is
warranted "only where there would be a miscarriage of
justice" or "where the evidence preponderates heavily against
the verdict." United States v. Indelicato, 611 F.2d 376, 386 _____________ __________
(1st Cir. 1979)(internal quotations omitted). Andrade does
not present any new evidence or point to any grave errors by
the trial judge, but merely reiterates his claim that the
evidence of intent was thin. As we find that the evidence in
the record fully supported the jury's verdict, neither of the
necessary conditions for a new trial is satisfied.
Accordingly, the district court did not abuse its discretion
when it denied Andrade's Rule 33 motion.
III
Andrade's appeals from his sentence are also
without merit. Andrade's first claim is that because there
is a disparity between the punishments for crack and powder
cocaine, the trial judge erred in not departing downward to
the comparable base offense level for powder cocaine. He
argues that the recent report of the Sentencing Commission,
which recommended a modification of this disparity,
demonstrates that there are factors not adequately considered
by the current Guidelines. See U.S.S.G 5K2.0, p.s. The ___
district court agreed with Andrade that the disparity was
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"unfair" and that, in the right circumstances, a departure
based on the Commission findings would be justified. Here,
however, the district judge found that were she to depart
downward, Andrade's extensive criminal record would then
require a substantial compensatory upward departure.
Accordingly, the court set Andrade's base offense level at
26, the required level under the Guidelines for cases
involving between five and twenty grams of cocaine base. See ___
U.S.S.G. 2D1.1(c)(7).
The district court thus rejected Andrade's request
for a departure on a discretionary, not a legal, basis.
While in other circumstances, this court lacks jurisdiction
to review the discretionary decisions of the sentencing
judge, United States v. Sanchez, 81 F.3d 9, 10 (1st Cir.), _____________ _______
petition for cert. filed (U.S. July 8, 1996)(No. 96-5082), we ________________________
would reject Andrade's appeal here regardless. As we have
held, the Sentencing Commission's findings with regard to the
sentence disparity between crack and powder cocaine are "not
a ground for departure under 5K2.0." Id. at 11; see also ___ ___ ____
United States v. Camilo, 71 F.3d 984, 990 (1st Cir. _______________ ______
1995)(noting congressional rejection of Guidelines amendments
that would have eliminated disparity), cert. denied, 116 S. _____________
Ct. 1555 (1996).4 The district court thus had no discretion
____________________
4. Andrade emphasizes that Congress, when rejecting the
proposed equalization of crack and powder cocaine penalties,
invited the Sentencing Commission to come up with an
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to depart downward based on the sentencing distinction
between crack and powder cocaine. This court has also held
the distinction to be constitutional. United States v. _____________
Singleterry, 29 F.3d 733, 739-41 (1st Cir.), cert. denied, ___________ _____ ______
115 S. Ct. 647 (1994).
Andrade also attacks the district court's decision
to increase his sentence by three levels for his aggravated
assault on a police officer. See U.S.S.G. 3A1.2(b). ___
Andrade contends that the presentence report finding that
Andrade "retrieved a gun, which he had earlier attempted to
conceal . . . and discharged it in the direction of Officer
Freeman" was unreliable and unsupported by trial evidence.
Andrade argues that the district judge erred in relying on
that report and on unreliable trial evidence.
In a sentencing appeal, we review the district
court's findings of fact for clear error, giving due regard
to the district court's credibility judgments. 18 U.S.C.
3742(e). Here, the district judge's finding that Andrade
assaulted Officer Freeman was clearly based on her own
assessment of the evidence presented at trial. Her findings
on this point were explicit:
____________________
alternative proposal. However, as has been observed, "a
direction to study a matter, even from Congress, cannot be
said to change the state of the law (here, the legal fact
that the Commission has considered the 'circumstance'-- the
difference between crack and powder cocaine)." United States _____________
v. Anderson, 82 F.3d 436, 440 (D.C. Cir. 1996). ________
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I saw the testimony, I saw the witnesses.
I heard what Officer Freeman said. I
listened to him with 25 years of
experience behind me. And I believe him.
Andrade points to nothing in the record that renders these
findings clearly erroneous. As the evidence, including
Wright's exclamation that "that dude shot at a cop," supports
a finding of aggravated assault on an officer, we affirm the
three-level enhancement.
Andrade's conviction and sentence are affirmed.
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