United States Court of Appeals
For the First Circuit
No. 10-1637
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM L. "BILLY" BERNIER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Selya and Howard, Circuit Judges.
Richard L. Hartley and Law Office of Richard Hartley on brief
for appellant.
Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.
November 3, 2011
SELYA, Circuit Judge. In this appeal, defendant-
appellant William L. "Billy" Bernier asserts that the sentencing
court erred in making a drug quantity determination. After careful
consideration, we reject this assertion and affirm the defendant's
sentence.
We rehearse the background facts to the extent needed to
provide context. A jury found that the defendant, at the times
material hereto, was a member of a marijuana distribution
conspiracy. Trial testimony indicated that the ringleader, Chad
Marquis, acquired marijuana in Canada and transported it to the
United States. He sold some of this marijuana to the defendant.
These purchases began as early as 2002.
After a time, the defendant introduced Marquis to Michael
Donato and Jeff Webber. Marquis subsequently sold marijuana
directly to all three men, sometimes in pairs and sometimes
separately.
In addition to these business relationships, Marquis and
another coconspirator, Steve Nadeau, shared a marijuana storage
unit. Nadeau occasionally delivered Marquis's marijuana to the
defendant and others.
On July 10, 2009, a federal grand jury indicted the
defendant for conspiracy to possess with intent to distribute
marijuana. See 21 U.S.C. §§ 841(a)(1), 846. After the jury found
the defendant guilty, the district court commissioned a presentence
-2-
investigation report (PSI Report). This report, as amended in
response to the defendant's objections, is front and center in this
appeal.
At the disposition hearing, the district court, relying
on trial testimony as well as facts limned in the PSI Report,
attributed 26 kilograms of marijuana to the defendant, yielding a
base offense level of 18. See USSG §2D1.1. Combined with the
defendant's criminal history category (I), this offense level
produced a guideline sentencing range (GSR) of 27 to 33 months.
The court imposed an incarcerative sentence at the bottom of the
range, 27 months. This timely appeal ensued.
Before us, the defendant argues that the sentencing court
erred in calculating the drug quantity attributable to him — an
error that he alleges inflated his GSR and, thus, adversely
influenced his sentence. Where, as here, a sentencing court's drug
quantity determination is factbound, appellate review is for clear
error. See United States v. Rodríguez-Lozada, 558 F.3d 29, 42 (1st
Cir. 2009). Under this deferential standard, we must honor the
sentencing court's 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).
Under the sentencing guidelines for federal drug crimes,
sentence length is driven in part by drug quantity. For that
-3-
purpose, drug quantity need not be proven beyond a reasonable doubt
but, rather, need only be supported by a preponderance of the
evidence. See United States v. Rodriguez, 525 F.3d 85, 107 (1st
Cir. 2008).
We have recognized that "[t]he calculation of drug
quantities is not an exact science." United States v. Platte, 577
F.3d 387, 392 (1st Cir. 2009). Consequently, "a sentencing court
charged with that responsibility need not be precise to the point
of pedantry." Id. A "reasoned estimate[] based on historical
data" will suffice. Id.
In the case at hand, the defendant's claim of error rests
on the assertions that the court gave too much weight to the
inherently unreliable testimony of his coconspirators. This error,
he says, was compounded by the court's misperception of that
testimony. We find these arguments unpersuasive.
The defendant's most ferocious attack is aimed at the
testimony of Marquis and Donato. In measuring the force of this
attack, we acknowledge that accomplices sometimes have their own
agendas, trying to shift blame, minimize culpability, or
accommodate prosecutors in order to better their own lot. For this
reason, accomplice testimony must be viewed with special caution.
See, e.g., United States v. Hernández, 109 F.3d 13, 15-16 (1st Cir.
1997); United States v. Pelletier, 845 F.2d 1126, 1128-29 (1st Cir.
1988). But judges, unlike uninstructed juries, are well aware of
-4-
this danger, and it is a bedrock principle that a sentencing court
may find the trial testimony of coconspirators sufficiently
reliable to ground a drug quantity determination. See, e.g.,
Platte, 577 F.3d at 393; United States v. Pierre, 484 F.3d 75, 88
(1st Cir. 2007). This is merely a subset of the time-tested tenet
that "credibility determinations are part of the sentencing court's
basic armamentarium." Platte, 577 F.3d at 392-93. Thus, we
decline the defendant's sweeping invitation to find that all
coconspirator testimony is untrustworthy.
More specifically, the defendant contends that Marquis's
testimony lacked credibility because on two occasions prior to
trial, he failed to mention that the defendant was one of his
customers. But there is no per se rule to the effect that a
witness, to be believed, must tell his story in exactly the same
way each and every time. Circumstances vary, and an earlier
omission may or may not undermine a later account. Here, as
elsewhere, we will upset a sentencing court's "credibility
determination only if we have a definite and firm conviction that
a mistake has been committed." United States v. González-Vélez,
587 F.3d 494, 504 (1st Cir. 2009) (citation and internal quotation
marks omitted). In this instance, we have no such conviction,
especially since the sentencing judge presided over the trial and
was in an enviable position to gauge Marquis's credibility and to
separate wheat from chaff.
-5-
If more were needed — and we do not think that it is —
the defendant does not identify any specific contradiction or
implausibility in Marquis's testimony. Nor do Marquis's earlier
statements, viewed in context, cast any substantial doubt on his
veracity. Even though he did not specifically identify the
defendant as a customer on those occasions, he did identify him all
along as a member of the drug-trafficking ring. The minor omission
of the defendant's dual status does not require discarding the baby
with the bath water. Cf. United States v. Webster, 54 F.3d 1, 5
(1st Cir. 1995) (upholding trial court's decision to credit
testimony of witness who was "an admitted perjurer, a drug user,
and a turncoat who received a substantially reduced sentence for
implicating others").
This brings us to the defendant's claim that the
coconspirators' trial testimony, even if not inherently unreliable,
did not fairly support the lower court's drug quantity
determination. This claim focuses on the absence of definite
numbers and emphasizes that, in the context of a conspiracy, a
sentencing court "must determine the specific quantity of drugs for
which the defendant is personally responsible." United States v.
Rivera Calderón, 578 F.3d 78, 100 (1st Cir. 2009) (citations and
alteration omitted).
The defendant's criticism is misplaced. The court below
recognized its obligation to make an individualized determination
-6-
that the defendant was personally accountable for 26 kilograms out
of the much larger store of marijuana handled by the conspiracy as
a whole.
Relatedly, the defendant identifies several instances in
which the testimony noted by the court was inexact. Given the
wavering contours of this testimony, the defendant insists that the
court's ultimate drug quantity determination was little more than
a guess. Some examples will serve to put this argument into
perspective. First, Marquis estimated the frequency of his
interactions with the defendant during the critical period as "nine
to twelve times." Second, Donato testified that he and the
defendant purchased marijuana from Marquis "probably four to six
times." In light of these and other similar imprecisions, the
defendant maintains that the district court lacked a sound basis to
attribute 26 kilograms of marijuana to him. We do not agree.
It is well settled that a sentencing court's selection
from among plausible alternative scenarios or divergent inferences
presented by the record cannot be clearly erroneous. See Platte,
577 F.3d at 393-94; United States v. Ruiz, 905 F.2d 499, 508 (1st
Cir. 1990). Given the ranges in the testimony concerning the
frequency and volume of the drug exchanges, the district court
wisely adopted the approach recommended in the amended PSI Report:
it used throughout conservative estimates of the number of
interactions and low-end estimates of volume. As we explain below,
-7-
the court's bottom-line drug quantity determination, based squarely
on these assessments, does not come close to clear error.
The sentencing court derived its drug quantity
determination from four sources. First, it attributed 16 kilograms
of marijuana to the defendant's purchases from Marquis. Second, it
attributed five kilograms of marijuana to deliveries made by
Marquis to Webber in the defendant's presence. Third, it
attributed four kilograms of marijuana to joint purchases made by
Donato and the defendant. Fourth, it attributed .73 kilograms of
marijuana to purchases made by the defendant from Donato. The
first three sub-parts of the court's drug quantity determination
survive scrutiny and the fourth does not matter.
To begin, Marquis testified that he first sold marijuana
to the defendant around 2002, initially in quarter-pound
quantities, progressively increasing in size to pound increments,
with these sales occurring every month or so. Then, for a couple
of years prior to 2007, Marquis sold the defendant bags of
marijuana containing anywhere from one to five pounds every month
or every couple of months, and he sold as much as five pounds of
marijuana on almost nine to twelve occasions.
Faced with this sales history, the district court limited
its calculation of direct purchases by the defendant from Marquis
to the last couple of years, effectively ignoring the previous
three-year record of transactions between the two men. It
-8-
exercised further restraint by disregarding all the five-pound
transactions and using three pounds as the norm, assuming that
Marquis sold the defendant that much marijuana every other month
for two years. These consignments totaled 36 pounds of marijuana
(roughly 16 kilograms). This estimate, which resolved virtually
every ambiguity in Marquis's testimony in favor of the defendant,
was reasonable and sufficiently supported by the record.
The same is true of the district court's quantification
of the sales that Marquis made to the tandem of Webber and the
defendant. Marquis testified that he delivered from one to five
pounds of marijuana to this duo on six to ten occasions and that
the average sale was two to three pounds. Once again, the court
used a series of conservative estimates, positing six transactions
of two pounds each. The end product — a finding that Webber and
the defendant together purchased twelve pounds of marijuana
(roughly five kilograms) — was reasonable and sufficiently
supported by the record.
The third component of the district court's drug quantity
determination likewise passes muster. Donato testified that the
defendant introduced him to Marquis as a potential buyer.
Following this introduction, Donato and the defendant together
purchased around two pounds of marijuana from Marquis on four to
six occasions. The court took a modest view of this testimony,
positing four sales of two pounds each, for a total of eight pounds
-9-
of marijuana (roughly four kilograms).1 This finding was
reasonable and sufficiently supported by the record.
The defendant fairs no better with respect to the last
sub-part. This portion of the court's findings attributes to the
defendant .73 kilograms of marijuana bought from Donato before the
defendant introduced Donato to Marquis. On this point, the
defendant's chief complaint is that these purchases occurred
outside the charged conspiracy. This complaint is unavailing.
Even if we assume that the conspiracy did not start until
after these transactions took place, the findings previously upheld
confirm that no less than 25 kilograms of marijuana were properly
attributed to the defendant. See supra note 1. That amount,
without more, suffices to place him well above the 20-kilogram
threshold for a base offense level of 18. Accordingly, any error
in including the .73 kilograms was harmless. See Calderón, 578
F.3d at 105.
We offer one final, more general, observation.
Transactions between drug wholesalers and drug retailers are often
conducted surreptitiously and with little if any documentation.
The need for secrecy is manifest, and the keeping of records can
1
The sentencing court did not include any of the marijuana
sold by Marquis to Donato (or Webber, for that matter) in the
defendant's absence. It did, however, use rounded conversion
equivalents. More exact conversions for the first three sub-parts
are set out as follows: (a) 36 pounds equal 16.3 kilograms; (b) 12
pounds equal 5.4 kilograms; and (c) 8 pounds equal 3.6 kilograms.
-10-
place the participants in jeopardy. Determining drug quantities
after the fact is, therefore, likely to require a careful sorting
of anecdotal information and the exercise of sound judgment.
This case constitutes a paradigmatic example. The court
below took a measured approach, evaluated the testimony carefully,
and erred, if at all, on the side of caution. At every turn, the
court used conservative figures and low-end estimates.
Consequently, we conclude without serious question that the court's
ultimate drug quantity determination was not clearly erroneous.
We need go no further. For the reasons elucidated above,
we reject the defendant's claim of sentencing error.
Affirmed.
-11-