United States v. Olivier-Diaz

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1306

UNITED STATES,

Appellee,

v.

PEDRO ARISMENDY OLIVIER-DIAZ
a/k/a ARTY,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Barbadoro,* District Judge.

George L. Garfinkle with whom Jeffrey A. Denner and Perkins,

Smith & Cohen were on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and Jonathan Toof,

Assistant United States Attorney, were on brief for appellee.

December 22, 1993

*Of the District of New Hampshire, sitting by designation.

BARBADORO, District Judge. Defendant Pedro

Arismendy Olivier-Diaz appeals from the sentence he received

after he was found guilty of conspiracy to possess cocaine

with intent to distribute and aiding and abetting the

distribution of cocaine. See 21 U.S.C. 841(a)(1), 841

(b)(1)(c), 846, and 18 U.S.C. 2. Arismendy challenges his

sentence on two grounds. First, he contends that the

district court erred in calculating his offense level under

the federal sentencing guidelines when it (1) relied on the

testimony of an allegedly untrustworthy witness to determine

the amount of cocaine involved in the conspiracy and (2)

concluded on the basis of inadequate evidence that he acted

as an organizer or leader of a criminal activity involving

five or more participants. Second, he claims for the first

time on appeal that the court engaged in "double counting"

when it increased his criminal history category by using

prior convictions that allegedly resulted from the

conspiracy on which his federal sentence was based. Finding

no reversible error, we affirm Arismendy's sentence in all

respects.

I.

BACKGROUND

A. The Offenses

During the fall of 1990, Arismendy met Ramon

Verona, a small-time drug dealer, and offered to sell him cocaine.

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Verona initially declined. However, he later contacted Arismendy

on two occasions and purchased 125 grams of cocaine on credit. Two

or three months later, Arismendy persuaded Verona and an

unidentified woman to make several trips from New York to

Massachusetts to transport cocaine. Once in Massachusetts, Verona

and the courier delivered the cocaine to a confederate of

Arismendy's whom Verona knew only as "Giovanni." For each trip,

Verona was paid $500 and supplied with 125 grams of cocaine on

credit.

Verona used the cocaine he obtained from

Arismendy to supply three of his customers in Maine, Peter Lauzier,

Vicki Hall and Pauline Rivard. Because Verona ran the cocaine

operation on credit, however, debt collection quickly became a

significant problem. By May 1991, Rivard owed Verona approximately

$16,000 for "fronted" cocaine, $4,000 of which was owed to

Arismendy. Arismendy's solution to this problem was to recruit

Verona's paramour, Argentina Dalmassi, and three men, to travel

with him to Maine to collect the debt. On June 2, 1991, the group

arrived at Rivard's home and confronted her boyfriend, Robert

Pelletier. When Pelletier informed them that Rivard was not at

home, Arismendy and the three men ransacked the house, taking some

cash and some jewelry. As they were leaving, Arismendy proposed

that he take possession of Pelletier's boat and provide Pelletier

with cocaine to sell until he paid back what Rivard owed.

Later that day, Arismendy encountered Rivard at a

nearby flower shop and demanded payment. Although she believed

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that she only owed money to Verona, Rivard promised to pay

Arismendy the next day. Moments later, Dalmassi appeared, slapped

Rivard in the face and demanded immediate payment. Arismendy,

however, ordered Dalmassi to leave. The group was arrested on

charges related to this collection attempt but they were all

released on bail later that day. Fearing for her safety when she

learned of their release, Rivard went to the authorities and

offered to cooperate.

In July 1991, Arismendy, unbeknownst to Verona,

began distributing cocaine directly to Lauzier and Hall. For the

next several months, Arismendy supplied them with two to ten ounces

of cocaine every other week. In early October, a customer

contacted Lauzier and Hall and asked to purchase cocaine. In

response, Lauzier and Hall went to a trailer owned by their friend,

Elwin Baker, weighed the cocaine in Arismendy's presence, and drove

to a local bar to make the sale. They were immediately arrested,

however, because their customer sold the cocaine to an undercover

officer of the Maine Bureau of Intergovernmental Drug Enforcement

(MBIDE). Arismendy, who was waiting to be paid for the cocaine,

became concerned after Lauzier and Hall failed to return, and he

sent Baker out to search for them. When Arismendy learned that

they had been arrested, he had Baker drive him back to his home in

New York. Arismendy later placed Baker in charge of Lauzier and

Hall's business and sold him as much as eight ounces of cocaine at

a time.

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Arismendy was arrested by the MBIDE in January

1992 and was subsequently convicted of the present federal charges

in the United States District Court for the District of Maine.

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B. The Sentence

The court held a sentencing hearing on February

26, 1993. Verona was called as a witness at the hearing and cross

examined by the defense in an effort to attack his trial testimony.

During this examination, Verona testified that he had made at least

four trips from New York to Massachusetts, transporting seven

kilograms of cocaine on the first trip, and added, "I don't

remember well, but I think the other [trips] were about 10

kilograms each." This testimony differed slightly from his trial

testimony where he had claimed that he had made "five or six trips"

and had delivered seven kilograms of cocaine on the first two trips

and ten kilograms on each remaining trip.

In determining Arismendy's total offense level,

the district court first grouped the two counts on which Arismendy

had been convicted, see U.S.S.G. 3D1.2(d), and set his base

offense level at 34 because it found that Arismendy's conduct

involved approximately 36 kilograms of cocaine. See U.S.S.G.

2D1.1(c)(5) (Drug Quantity Table) (establishing base offense level

34 for conduct involving "[a]t least 15 KG but less than 50 KG of

Cocaine"). The court then found that Arismendy had been an

organizer or leader of a criminal activity involving five or more

participants and added four levels to his base offense level. See

U.S.S.G. 3B1.1(a). Finally, because Arismendy had received two

firearms as partial payment for cocaine, the court made an

additional two-level increase to his offense level. See U.S.S.G.

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2D1.1(b)(1). These calculations resulted in a total offense level

of 40.

The court then placed Arismendy in criminal

history category II by assigning one criminal history point to

prior State of Maine convictions for theft and criminal threatening

and a second point to a prior State of New York conviction for

operating a motor vehicle while impaired by alcohol. See U.S.S.G.

4A1.1(c). Accordingly, the court determined Arismendy's

guideline sentencing range to be 324-405 months. The court then

sentenced Arismendy to 365 months in prison, five years of

supervised release and a $5,000 fine. This appeal followed.

II.

DISCUSSION

A. The Offense Level

Arismendy challenges two steps in the district

court's offense level computation. We consider his claims "mindful

that we must both 'accept the findings of fact of the district

court unless they are clearly erroneous' and 'give due deference to

the district court's application of the guidelines to the facts.'"

United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990) (quoting

18 U.S.C.

3742(e)).

1. Cocaine Quantity

Arismendy's first argument is that the sentencing

court erroneously relied on Verona's testimony in determining the

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amount of cocaine involved in the conspiracy because Verona offered

uncorroborated and self-contradictory testimony in an effort to

receive favorable treatment from the government. We reject this

contention.

Arismendy's counsel forthrightly conceded at oral

argument that if Verona's testimony were believed, his claim would

collapse. Given this concession, we easily conclude that the

district court did not err in its drug quantity determination. The

record shows unequivocally that after considering the evidence and

rejecting the same arguments now raised on appeal, the court found

Verona's testimony to be credible. In the absence of clear error,

such assessments are exclusively within the province of the

sentencing court. We find no such error here. Cf. id. at 508

("where there is more than one plausible view of the circumstances,

the sentencing court's choice among supportable alternatives cannot

be clearly erroneous").

2. Leadership Role

Arismendy next claims that the district court

committed clear error when it increased his offense level by four

levels because of his alleged leadership role in the conspiracy.

See U.S.S.G. 3B1.1(a). He contends that the enhancement was

improper because the evidence established only that he acted alone

in selling cocaine to multiple "independent customers." We

disagree.

Two conditions must be met before a leadership

role enhancement is in order under U.S.S.G. 3B1.1(a). See United

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States v. Preakos, 907 F.2d 7, 9 (1st Cir. 1990) (per curiam).

First, the sentencing court must find that the defendant acted as

"an organizer or leader of a criminal activity." Second, the

activity must have "involved five or more participants or was

otherwise extensive." See United States v. McDowell, 918 F.2d

1004, 1011 (1st Cir. 1990) (quoting U.S.S.G. 3B1.1(a)).

In determining whether a defendant had a

leadership role in criminal activity, the commentary to section

3B1.1 instructs courts to consider such factors as decision making

authority, recruitment of accomplices, degree of participation in

planning the offense, degree of control over others, and a claimed

right to a larger share of the fruits of the crime. U.S.S.G.

3B1.1, comment. (n.4); see also Preakos, 907 F.2d at 9. Because

such "role in the offense" assessments are fact-specific, the

district court's views must be accorded "considerable respect."

See United States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).

The instant record amply supports the district

court's conclusion that Arismendy was an organizer or leader of the

drug distribution conspiracy. The court could reasonably have

inferred from the trial evidence that Arismendy: (1) initiated

cocaine discussions with Verona; (2) convinced Lauzier and Hall to

work with him; (3) attempted to persuade Pelletier to sell cocaine

for him; (4) actively supervised the collection of debts; (5)

instructed Baker to take over the Maine distribution business after

Lauzier and Hall were arrested; and (6) exercised a high degree of

decision making authority both in organizing the multi-kilogram

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cocaine shipments from New York to Massachusetts and in directing

and coordinating Verona and the female courier. Given these

permissible inferences, the court was not clearly erroneous in

finding that Arismendy was an organizer or leader of the criminal

activity. Cf., e.g., Preakos, 907 F.2d at 9-10 (upholding

enhancement where defendant, among other things, "exercised control

over his distributors, at least in the sense that he directed them

with regard to their role in the various cocaine shipments and

apparently coordinated aspects of the distribution").

The district court also could have plausibly

concluded from the record that five or more participants were

involved in Arismendy's criminal activity. Under section

3B1.1(a), a "participant" is any person, including the defendant,

who is "criminally responsible for the commission of the offense .

. . ." See U.S.S.G. 3B1.1, comment. (n.l); see also Preakos, 907

F.2d at 10 (defendant included as a participant under U.S.S.G.

3B1.1(a)). Even without counting the persons Arismendy claims were

merely customers, at least five others, including Arismendy,

Verona, the female courier, Giovanni, and one or more of the four

debt collectors, could reasonably have been considered participants

in Arismendy's criminal activity. Thus, we find no clear error in

the sentencing court's determination.

B. The Criminal History Category

Arismendy's final contention is that the district

court engaged in "double counting" when it used the theft and

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criminal threatening convictions -- which, appellant claims,

resulted from his June 1991, collection attempt against Rivard --

to increase his criminal history category. Arismendy bases this

claim on section 4A1.2(a)(1) of the Guidelines, which provides that

in computing a defendant's criminal history, a court may count only

sentences that were "previously imposed . . . for conduct not part

of the instant offense." He contends that because the theft and

criminal threatening convictions resulted from conduct that was

part of the federal drug distribution conspiracy, these convictions

cannot be used to increase his criminal history category. Since

Arismendy did not raise this claim in the district court, his

sentence can be reversed on this basis only upon a showing of

"plain error." See Fed. R. Crim. P. 52(b). He has failed to make

such a showing here.

Three criteria restrict a reviewing court's

authority to reverse a sentence under the plain error rule. First,

a reviewable error must have occurred during the sentencing

process. Second, the error must be "clear" or "obvious." Third,

the error must affect "substantial rights," which in most cases

means that the defendant must make a specific showing that the

error probably affected his sentence. United States v. Carrozza, 4

F.3d 70, 87-88 (1st Cir. 1993)(citing United States v. Olano, 113

S. Ct. 1770, 1777-78 (1993)). Even if all three criteria have been

satisfied, the reviewing court retains the discretion not to

correct an error, however plain, unless the error "seriously

affect[s] the fairness, integrity or public reputation of judicial

11

proceedings." Olano, 113 S. Ct. at 1779 (quoting United States v.

Atkinson, 297 U.S. 157, 160 (1936)).

Applying the plain error standard, we reject

Arismendy's double counting argument without reaching its merits.

Where the error defendant asserts on appeal depends upon a factual

finding the defendant neglected to ask the district court to make,

the error cannot be "clear" or "obvious" unless the desired factual

finding is the only one rationally supported by the record below.

See United States v. Gaudet, 966 F.2d 959, 962 (5th Cir.), reh'g

denied, 973 F.2d 927 (1992), cert. denied, 113 S. Ct. 1294 (1993).

Here, Arismendy's double counting argument depends upon his claim

that the theft and criminal threatening convictions resulted from

the unsuccessful effort to collect Rivard's cocaine debt. However,

the record on this subject is equivocal at best. The Presentence

Report describes the theft and criminal threatening convictions

without stating whether they resulted from Arismendy's attempt to

collect Rivard's debt. Moreover, the Report states that Arismendy

was arrested on the theft and criminal threatening charges on

August 7, 1991, whereas the unrebutted evidence produced at trial

established that Arismendy was arrested for his role in the debt

collection effort on June 2, 1991. Since Arismendy never

challenged this portion of the Presentence Report, the only support

for his argument in the record is that his attempt to collect

Rivard's cocaine debt involved conduct that could have resulted in

theft and criminal threatening convictions. While we might infer

from this evidence that the theft and criminal threatening charges

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and the debt collection effort are related, the record also amply

supports the opposite conclusion. We therefore cannot conclude

that the district court committed obvious error in using the theft

and criminal threatening convictions to enhance his criminal

history category.

III.

CONCLUSION

For the reasons expressed above, Arismendy's

sentence is

affirmed.

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