United States v. Delgado-Munoz

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2031

UNITED STATES OF AMERICA,
Appellee,

v.
GERARDO DELGADO MUNOZ,

Defendant, Appellant.

No. 92-2032
UNITED STATES OF AMERICA,

Appellee,
v.

SAUL ANDINO FIGUEROA,
a/k/a BRUNO,
Defendant, Appellant.

No. 92-2033

UNITED STATES OF AMERICA,
Appellee,

v.
JUAN MARTINEZ,

Defendant, Appellant.

No. 92-2034
UNITED STATES OF AMERICA,

Appellee,
v.

LEANDRO QUINONES,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]

Before
Boudin, Circuit Judge,

Coffin, Senior Circuit Judge,

and Pettine,* Senior District Judge.

Owen S. Walker for appellant Gerardo Delgado Munoz.

John C. Doherty, by Appointment of the Court, for appellant Saul

Andino Figueroa.
Raymond E. Gillespie, by Appointment of the Court, for appellant

Leandro Quinones.
Nicholas B. Soutter, by Appointment of the Court, with whom Paul

S. McGovern was on brief for appellant Juan Martinez.

Dina Michael Chaitowitz, Assistant United States Attorney,

Organized Crime Drug Enforcement Task Force, with whom Donald K.

Stern, United States Attorney, was on brief for the United States.

October 13, 1994

*Of the District of Rhode Island, sitting by designation.

BOUDIN, Circuit Judge. Appellants Gerardo Delgado-

Munoz, Leandro Quinones, Juan Martinez, and Saul Andino-

Figueroa were indicted on June 21, 1991, for conspiracy to

distribute cocaine base, commonly known as "crack" cocaine,

in violation of 21 U.S.C. 841(a)(1) and 846. Delgado was

alleged to have been the ringleader of the operation, with

Quinones serving as his chief lieutenant and Andino and

Martinez filling various subordinate roles as lookout,

courier, driver and guard.

The indictment alleged that members of the conspiracy

had sold cocaine base to an undercover operative of the Drug

Enforcement Administration, Pamela Mersky, on six different

occasions in April and May 1991. The transactions, which all

took place in Boston and its suburbs, involved a total of

896.2 grams of cocaine base, 506 grams of which changed hands

in the final transaction on May 30, 1991. In addition to

conspiracy, each defendant was charged with one or more

substantive counts of cocaine distribution corresponding to

the transactions in which he participated.1

Appellants and two other co-defendants were tried to a

jury in April 1992. The government's evidence consisted

1Specifically, Delgado and Quinones were charged with
six substantive distribution counts arising out of
transactions on April 9, 19, 23, May 6, 16, and May 30, 1991.
Andino was charged with four substantive distribution counts
pertaining to the April 23, May 6, 16, and May 30
transactions. Martinez was charged with one distribution
count for the May 30 transaction.

-3-

primarily of Special Agent Mersky's testimony, supported by

tape-recordings of her conversations with the defendants and

testimony of surveillance agents who monitored the

transactions. The jury convicted appellants on all counts.

One co-defendant, Paulita Cadiz, was also convicted on all

counts but has not appealed; the remaining defendant, Lazaro

Delgado, was acquitted. On June 29, 1992, the court

sentenced Andino to 151 months' imprisonment, Martinez to 240

months' imprisonment, and sentenced Delgado and Quinones each

to 360 months' imprisonment.

These appeals followed. Each appellant except Delgado

challenges his conviction, and all challenge their sentences.

We first consider appellants' challenges to various

evidentiary rulings and instructions at trial, as well as to

the sufficiency of the evidence on various counts.

Thereafter, the sentencing issues are addressed.

I. THE CONVICTIONS

A. Andino

We begin with the conviction of Andino, who is also

referred to in the indictment as "Bruno." Andino was alleged

to have assisted Delgado and the others on at least four drug

transactions by watching over the drugs, conducting counter-

surveillance, and sometimes by making the actual delivery.

He argues first that the trial court erroneously admitted a

spontaneous confession made upon his arrest in Puerto Rico.

-4-

Andino was not present at the May 30, 1991, transaction

between his co-defendants and Mersky, after which the other

defendants were arrested. Instead, Andino was apprehended on

November 26, 1991, when United States Marshals executed an

arrest warrant for Andino in Catalina, Puerto Rico. Upon

arriving at Andino's home, the marshals were met at the door

by appellant's brother, Cuco Andino-Figueroa, whom the

marshals initially mistook for appellant. When the marshals

told the brother that they had a warrant from Boston for

narcotics offenses, appellant entered the room and shouted,

"I'm the one you are looking for. I'm the guilty one. He's

never been to Boston. I'm the one that's been to Boston."

Prior to trial, Andino filed a motion in limine to

preclude testimony as to his spontaneous confession. At a

hearing, Andino argued that the confession should be excluded

because it would guarantee conviction. Construing this as an

argument under Fed. R. Evid. 403, the district court denied

the motion on the ground that the confession was "strongly

probative of [Andino's] knowledge and his intent," and was

"not unfairly prejudicial." Andino now argues that the

district court failed to adequately consider the prejudicial

impact of the confession in striking the Rule 403 balance.

The district court's wide latitude in admitting or

excluding evidence under Rule 403 is well established.

Daigle v. Maine Medical Center, Inc., 14 F.3d 684, 690 (1st

-5-

Cir. 1994). The district court found--and we agree--that

Andino's outburst "shows knowledge on the part of the

defendant . . . that a particular crime involving narcotics

was the subject of the arrest, and it took place in Boston."

The admission has special importance since at trial Andino

argued that the government had arrested the wrong man. The

damage done to the defense is not a basis for exclusion; the

question under Rule 403 is "one of `unfair' prejudice--not of

prejudice alone." United States v. Moreno Morales, 815 F.2d

725, 740 (1st Cir. 1987).

We turn next to a hearsay issue. At trial, Mersky was

allowed, over Andino's objection, to testify that a landlord

had given federal drug agents a rent receipt showing that

Andino rented a room at 6 Michigan Avenue in Dorchester,

Massachusetts. That address was shown at trial to have been

a center of the conspiracy. Andino argued both at trial and

on appeal that he was prejudiced by any reference to the rent

receipt--which, he contends, was "blatant hearsay" and should

not have been admitted.

Although the government might have argued that the rent

receipt itself was not hearsay, cf. Fed. R. Evid. 801(a) (a

"statement" is an oral or written "assertion"), it is

apparently willing to treat the testimony in question as if

it were a report of what the landlord said orally to the DEA

agents. But the government insists that the testimony was

-6-

not elicited or used for purposes of proving that Andino

actually lived at 6 Michigan Avenue. Rather, it says that

the testimony was brought out on redirect merely in order to

explain that Mersky had some colorable reason--whether or not

correct--for attaching Andino's name to the description she

furnished to the marshals in Puerto Rico.

This redirect was important, the government says,

because during the drug deals, about which Mersky testified

at length, she had known Andino only as "Bruno" and had no

knowledge of his real name. On cross-examination of Mersky,

Andino's defense counsel had brought out this fact; he

suggested in further questions that Mersky's description of

Bruno, given to the marshals in Puerto Rico, did not match

Andino's appearance in the courtroom; and arguably he left

the impression through his questions that there was something

suspicious in the unexplained appearance of Andino's real

name in the information given to the marshals.

It is quite true that an out-of-court statement is not

hearsay if it is used only to show that the statement was

made and that the listener heard the words uttered. See 6

Fed. R. Evid. 801(c) (hearsay is an out-of-court statement

offered "to prove the truth of the matter asserted"). We

have no doubt that it was on this theory that the district

judge overruled the hearsay objection, saying that Mersky

"doesn't know whether it is true or not [that Andino lived at

-7-

6 Michigan Avenue]. She just knows how she found out. It is

not offered for the truth of the matter, just how she found

out." Whether or not there is still an underlying hearsay

problem is an issue that could be debated at length; and in

some measure it might depend on matters not clearly

developed: exactly what the landlord said; just what

information was relayed to Mersky and then to the marshals;

and precisely what inference the government is aiming to

refute.

We see no reason to engage in these speculations because

the admission of this evidence was patently harmless. Mersky

had dealt face to face with "Bruno" on four different

occasions. Her ability to identify Andino as Bruno could be

easily tested in the courtroom and was in fact tested on

cross-examination. The jury was also apprised of Andino's

virtual confession at the time of his arrest ("I'm the guilty

one."), and his further incriminating statement after his

arrest (Andino told his father that there was no point in a

removal hearing since "[Mersky] would come over and identify

me"). The alleged hearsay did not alter the outcome.

Andino next claims that there was insufficient evidence

to support his conviction for the May 30, 1991, transaction

in which other defendants sought to sell 506 grams of cocaine

base to Mersky. The parties agree that Andino was not

present at this transaction. At trial, the government argued

-8-

that Andino was liable under Pinkerton v. United States, 328

U.S. 640 (1946). Pinkerton permits a defendant to be held

liable for actions committed by a co-conspirator if that

crime is in furtherance of the conspiracy and is committed

while the defendant is a member of the conspiracy. Id. at

328. See United States v. O'Campo, 973 F.2d 1015, 1021 (1st

Cir. 1992).

In this court, Andino does not dispute the theory but

argues that the evidence at trial was so thin that his motion

for judgment of acquittal should have been granted. This

requires Andino to "bear the heavy burden of demonstrating

that no reasonable jury could have found [him] guilty beyond

a reasonable doubt." United States v. Innamorati, 996 F.2d

456, 469 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993). We

review the evidence in the light most favorable to the

government, "drawing all plausible inferences in its favor

and resolving all credibility determinations in line with the

jury's verdict." Id.

Under Pinkerton, the government was required to prove

that the May 30 transaction was carried out by members of the

conspiracy, in furtherance of the conspiracy, and at a time

when Andino was still a member of the conspiracy. Andino has

not claimed a lack of evidence to support his conspiracy

conviction. Nor does he dispute that the May 30 transaction

was in furtherance of the conspiracy. But he does dispute

-9-

that he was still a member as of May 30, 1991, arguing in his

brief that he "disappeared entirely from the Government's

radar screen" after May 16, 1991. In fact, there is no

evidence in the record concerning his activities after that

date until his arrest in Puerto Rico on November 26, 1991.

A "`mere cessation of activity in furtherance of a

conspiracy does not constitute withdrawal.'" United States

v. Nason, 9 F.3d 155, 162 (1st Cir. 1993), cert. denied, 114

S. Ct. 1331 (1994) (quoting United States v. Juodakis, 834

F.2d 1099, 1102 (1st Cir. 1987)). To withdraw, a conspirator

must take some affirmative action "either to defeat or

disavow the purposes of the conspiracy." Juodakis, 834 F.2d

at 1102. Typically, we have required "evidence either of a

full confession to authorities or a communication by the

accused to his co-conspirators that he has abandoned the

enterprise and its goals." Id. Even if a very extended

lapse of time might be sufficient to infer withdrawal, the

two-week interval in this case is not enough.

B. Martinez

Appellant Martinez also challenges his conviction. Both

Martinez and his co-defendant, Gerardo Delgado, pleaded

guilty on October 30, 1985, in Connecticut state court to

possession of cocaine with intent to distribute it. The

government introduced these convictions at trial over the

defendants' objections in order to show, inter alia,

-10-

"knowledge and intent in a common scheme or plan." Martinez

now asserts that "[a]dmission of evidence of Martinez' prior

conviction impermissibly prejudiced his defense," but adds no

explanation to this one-line allegation. "[I]ssues adverted

to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived." United States

v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.

1082 (1990).

Martinez also says that the evidence was insufficient to

support his convictions for conspiracy, and for possession

with intent to distribute on May 30, 1991. The government's

evidence on both counts arises from the May 30 transaction.

Martinez was first spotted at about 6:50 p.m. that evening by

a state police officer who saw Martinez walking up and down

the street outside SkipJack's restaurant in Brookline

Village. Mersky, who had been told by Delgado to wait

outside SkipJack's at 7:30 p.m. in order to purchase drugs,

testified that Martinez greeted her there and then walked

away.

Shortly thereafter, Delgado contacted Mersky by

signaling her beeper. When Mersky called Delgado from a pay

phone, Mersky was told to meet Paulita Cadiz, who (along with

Lazaro Delgado) accompanied her to a blue-colored Oldsmobile

occupied by Martinez and a female juvenile. Martinez, then

sitting in the driver's seat, pushed a large piece of luggage

-11-

located on the passenger-side floor toward Lazaro Delgado and

assisted him in opening it. The bag contained numerous vials

of cocaine base. Mersky took the bag and walked away,

announcing that she was "going to get the money."

As Mersky walked away, she signalled to two officers who

were waiting in an unmarked car nearby. The officers, each

of whom were wearing raid jackets marked with police

insignia, got out of their car and turned toward the blue

Oldsmobile, displaying firearms and shouting "police." Both

officers testified that Martinez then threw the Oldsmobile

into reverse and backed up Brookline Avenue at a high rate of

speed. After crashing into another unmarked police cruiser,

Martinez put the car back in forward gear and sought to flee.

He was eventually stopped and arrested.

The testimony was ample to convict Martinez on both the

conspiracy and substantive distribution counts. A reasonable

jury could have inferred that Martinez was conducting

counter-surveillance when he was first observed outside

SkipJack's. Martinez was the only adult in the blue

Oldsmobile along with the suitcase containing the drugs;

since he then pushed the drugs over to Lazaro Delgado to give

to Mersky, the jury could reasonably have found that Martinez

had possessed the drugs.2 His intent to distribute can

2Martinez argues that he could not have possessed the
drugs because he did not have sole access to the bag.
Exclusive access is not a prerequisite to possession; indeed,

-12-

likewise be inferred from this same event and from his

participation in the overall transaction. The attempt to

flee further corroborates his guilt.

The jury was also entitled to infer that Martinez agreed

to cooperate with his alleged co-conspirators in carrying out

the transaction. The many steps of the dance performed by

the participants indicate careful planning and coordination,

and Martinez's own multiple roles--lookout, initial contact

with Mersky, guardian of the drugs--do not look like the

unplanned actions of an unwitting victim who was merely along

for the ride. In any event, the evidence was sufficient for

a reasonable jury to convict Martinez on both the conspiracy

and substantive distribution counts.

C. Quinones

The remaining appellant is Quinones. The government

alleged at trial that Quinones was Delgado's partner in their

drug distribution activities. Quinones now argues that the

district court erred in instructing the jury on the issue of

liability for crimes committed by co-conspirators under the

Pinkerton doctrine. As already explained, Pinkerton allows a

defendant to be held criminally liable for the acts of a co-

conspirator carried out in furtherance of the conspiracy at a

time when the defendant is a member of the conspiracy, even

"joint possession" is one of the possibilities mentioned in
the standard charge. See, e.g., United States v. Maldonado,

23 F.3d 4, 6-7 (1st Cir. 1994).

-13-

though the defendant himself did not participate in those

acts. See 328 U.S. at 645-48.

Quinones argues that the district court should have

emphasized the jury's obligation to find each element of

Pinkerton beyond a reasonable doubt. Although the district

court gave a separate reasonable doubt instruction applicable

to the entire case, Quinones cites us to the Seventh

Circuit's decision in United States v. McKenzie, 922 F.2d

1323, 1330 (7th Cir.), cert. denied, 112 S. Ct. 163 (1991),

which suggested that a complete Pinkerton instruction should

inter alia "`advise jurors that the government [bears] the

burden of proving . . . all elements of the powerful

Pinkerton doctrine . . . beyond a reasonable doubt'" (quoting

United States v. Elizondo, 920 F.2d 1308, 1317 (7th Cir.

1990)).

This court "evaluate[s] [a] challenged instruction in

the context of the overall charge." E.g., United States v.

Vavlitis, 9 F.3d 206, 212 (1st Cir. 1993). Similarly, the

Supreme Court in Cupp v. Naughten, 414 U.S. 141, 146-47

(1973), referred to "the well-established proposition that a

single instruction to a jury may not be judged in artificial

isolation, but must be viewed in the context of the overall

charge." Here, the district court began its charge by

stating that the government was obligated to "prove every

element of every offense beyond a reasonable doubt," and

-14-

referred to that burden of proof over a dozen times during

the course of its instructions.

Pinkerton may be a powerful doctrine, but there is no

reason to think that the jury is especially likely to forget

the general instruction on reasonable doubt when it comes to

applying Pinkerton. We have no intention of constructing a

special requirement that reasonable doubt be mentioned again,

after an adequate general statement, in relation to selected

elements in an offense or theory of liability. Indeed, in

United States v. Mount, 896 F.2d 612, 623-24 (1st Cir. 1990),

cert. denied, 114 S. Ct. 415 (1993), we rejected just such an

argument pertaining to the district court's instruction on

interstate transportation of stolen property.

II. THE SENTENCES

Appellants also challenge numerous aspects of their

sentences under the federal sentencing guidelines, and we

consider each appellant's claims in turn--starting with

Delgado, the alleged ringleader of the drug distribution

conspiracy.

A. Delgado

At Delgado's sentencing, the district court began with a

base offense level of 36 in light of the amount of drugs

involved, added one level because drug distribution activity

took place in proximity to a school, U.S.S.G. 2D1.2, then

added four levels for Delgado's leadership role. U.S.S.G.

-15-

3B1.1(a). The court denied Delgado a two-level reduction for

acceptance of responsibility, see U.S.S.G. 3E1.1, and

placed him in criminal history category II based on a 1985

Connecticut conviction for possession of cocaine with intent

to distribute. The court then sentenced Delgado to 360

months, the bottom of the resulting guideline range.

On appeal, Delgado first contests the district court's

denial of a reduction for acceptance of responsibility.

Shortly after his arrest, Delgado made a statement to police

officers in which, he asserts, he accepted responsibility for

his crime. In that statement, according to police reports,

Delgado acknowledged that he had called someone who had the

cocaine in order to set up the transaction, and had then

called Special Agent Mersky to arrange a meeting. Despite

this admission, Delgado subsequently pled not guilty to the

indictment and went to trial.

Delgado now contends that the district court failed to

consider his post-arrest statement and refused to reduce his

offense level under section 3E1.1 solely as punishment for

invoking his constitutional right to a trial. The district

court addressed the statement made by Delgado, but concluded

in substance that it was not a full acceptance of

responsibility. Indeed, while the statement admitted that

Delgado played some role in the offense, it downplayed his

own role and asserted that some unnamed individual was the

-16-

true source of the drugs. The court's decision is reviewed

only for clear error, and no such error occurred here.

United States v. Donovan, 996 F.2d 1343, 1346 (1st Cir.

1993); U.S.S.G. 3E1.1, application note 5.

At sentencing, the district court said that Delgado's

failure to plead guilty was an important factor in the denial

of credit. This is consistent with the guidelines, which

provide that "[c]onviction by trial . . . does not

automatically preclude a defendant from consideration for

such a reduction" but ordinarily the adjustment "is not

intended to apply to a defendant who puts the government to

its burden of proof at trial by denying the essential factual

elements of guilt, is convicted, and only then admits guilt

and expresses remorse." U.S.S.G. 3E1.1, application note

2.3

Obviously, the guideline, consistent with pre-guideline

practice, means that a defendant who declines to plead guilty

reduces the chance of a lightened sentence. But "not every

burden on the exercise of a constitutional right, and not

3There are exceptions; the guidelines specifically
mention one who "litigates to preserve issues that do not
relate to factual guilt . . . ." Id. Delgado argues on

appeal that he failed to plead guilty to avoid being
immunized and forced to testify against his brother, Lazaro
Delgado, on behalf of the government. Since neither this
argument nor any evidence in support of it were ever
presented to the district court, we do not consider the
claim. United States v. Dietz, 950 F.2d 50, 55 (1st Cir.

1991).

-17-

every pressure or encouragement to waive such a right, is

invalid." Corbitt v. New Jersey, 439 U.S. 212, 218 (1978)

(possibility of a lesser sentence through a plea bargain does

not unconstitutionally burden the right to stand trial). The

guidelines "merely codify a tradition of leniency [for guilty

pleas] and are not an impermissible burden on the exercise of

constitutional rights." United States v. Uribe, 891 F.2d

396, 400 (1st Cir. 1989), cert. denied, 495 U.S. 951 (1990).

Delgado also objects to the district court's

consideration, in calculating his criminal history category,

of a prior Connecticut conviction for unlawfully possessing

cocaine with intent to distribute. At his sentencing hearing

in the present case, Delgado sought to attack collaterally

the prior state conviction, asserting that his guilty plea in

that case was constitutionally invalid. The district court,

relying upon our decision in United States v. Paleo, 967 F.2d

7 (1st Cir. 1992), considered Delgado's arguments on the

merits but determined that the guilty plea "passed

constitutional muster."

After Delgado's sentencing, Paleo was greatly narrowed

by United States v. Isaacs, 14 F.3d 106, 108-110 (1st Cir.

1994), which held that the sentencing guidelines provide no

independent authority for collateral review of prior

convictions used in calculating a defendant's criminal

history category. Although Isaacs preserved certain

-18-

exceptions based upon the Constitution rather than the

guidelines, the Supreme Court subsequently held in Custis v.

United States, 114 S. Ct. 1732 (1994), that the Constitution

requires collateral review of a prior conviction used to

enhance a defendant's federal sentence only where the

defendant alleges a complete denial of his Sixth Amendment

right to counsel in the prior proceeding.

Although Custis considered collateral attack under the

Armed Career Criminal Act rather than the sentencing

guidelines themselves, the constitutional question is the

same in each context. Like Delgado in the present case,

Custis alleged that one of his prior convictions was procured

pursuant to a guilty plea that was not knowing and

intelligent as required by Boykin v. Alabama, 395 U.S. 238

(1969). The Supreme Court rejected this argument, noting

that "when a guilty plea is at issue, `the concern with

finality served by the limitation on collateral attack has

special force.'" 114 S. Ct. at 1738 (quoting United States

v. Timmreck, 441 U.S. 780, 784 (1979)). Given Custis, we do

not reach the merits of Delgado's challenge to his earlier

conviction.

B. Andino

We turn now to the sentencing claims of Andino. The

district court began with a base offense level of 36, finding

that Andino was responsible for 745.1 grams of cocaine base.

-19-

U.S.S.G. 2D1.1(c). The court then deducted two levels on

the ground that Andino was a minor participant in the

conspiracy, U.S.S.G. 3B1.2(b). Given a criminal history

category of I, the guideline range was 151 to 188 months, and

the district court imposed a sentence of 151 months. Andino

now asserts that the court erred in several respects, firstly

by attributing to him 506 grams of cocaine base sold by other

defendants to Mersky on May 30, 1991, when Andino was neither

present nor involved in the transaction.

Individuals convicted of membership in a drug conspiracy

are held responsible at sentencing not only for "drugs [they]

personally handled or anticipated handling," but also, "under

the relevant conduct rubric, for drugs involved in additional

acts that were reasonably foreseeable by [them] and were

committed in furtherance of the conspiracy." United States

v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993). In the

usual case, what is foreseeable depends on the scope of the

defendant's agreement with the other participants in the

criminal enterprise. United States v. Garcia, 954 F.2d 12,

16 (1st Cir. 1992). Accordingly, the district court's task

was to determine whether the May 30 transaction was

reasonably foreseeable based upon the scope of Andino's

agreement with his co-conspirators. Our review is only for

clear error. United States v. De la Cruz, 996 F.2d 1307, 1314

(1st Cir.), cert. denied, 114 S. Ct. 356 (1993).

-20-

The record leaves little question that the May 30 sale

was the "natural progression of the earlier series of sales,"

Garcia, 954 F.2d at 16, and thus within the scope of Andino's

agreement with his co-conspirators. True, the government's

evidence did not mention Andino after May 16, but there is

also no evidence that he affirmatively withdrew from the

conspiracy. Nor is it conclusive that the May 30 transaction

was larger than earlier transactions. In fact, co-defendant

Quinones told Special Agent Mersky that the conspirators had

other customers who bought in larger quantities than she did.

Next, the district court found that Andino was a minor

participant in the conspiracy and accordingly reduced his

base offense level by two levels, pursuant to U.S.S.G.

3B1.2(b). In so doing, the court rejected Andino's argument

that he was entitled to an even larger reduction as a minimal

participant. See U.S.S.G. 3B1.2(a). Andino now renews

this argument on appeal, stressing his unfamiliarity with the

English language and his absence at the group's largest

transaction on May 30, 1991.

The guidelines note that the "minimal participant"

reduction should be "used infrequently," U.S.S.G. 3B1.2,

application note 2, and the defendant has the burden of

showing his entitlement to the reduction. United States v.

Figueroa, 976 F.2d 1446, 1461 (1st Cir. 1992) cert. denied,

113 S. Ct. 1346 (1993). Here, Andino was involved in at

-21-

least four cocaine transactions and performed a number of

different functions, including guarding the drugs, conducting

counter-surveillance, and delivering cocaine base to Special

Agent Mersky. Compare U.S.S.G. 3B1.2, application note 2

(minimal participant "played no other role . . . than to

offload part of a single marijuana shipment," or was a

courier in "a single smuggling transaction"). We sustain the

district court's finding that Andino's role was "minor"

rather than something less.

Last, the guidelines distinguish dramatically between

cocaine and cocaine base (or "crack"), treating one gram of

the latter as the equivalent of 100 grams of the former.

Andino argues that the government's trial evidence failed to

distinguish clearly between cocaine base and ordinary

cocaine. He also claims that the jury's finding of cocaine

base rests upon "untrustworthy evidence and faulty although

well intended instruction[s]" by the court.

Whether the substance distributed was cocaine or cocaine

base was a matter to be determined by the district judge at

sentencing, not the jury. United States v. Barnes, 890 F.2d

545, 551 n.6 (1st Cir. 1989), cert. denied, 494 U.S. 1019

(1990). Under 21 U.S.C. 841(a), the jury need only find

that the defendant distributed a substance containing some

mixture of cocaine as defined in schedule II. Barnes, 890

F.2d at 551 n.6; see 21 U.S.C. 812, 841(a). On appeal

-22-

from the sentence, we need only review the district court's

sentencing determination that the substance involved was

cocaine base. Barnes, 890 F.2d at 551 n.6.

Andino's argument is directed to the trial testimony of

DEA chemist Florence Wong, who testified about the

differences between ordinary cocaine and cocaine base.

Although Wong did misspeak at one point in the transcript,

her overall testimony was not confusing or misleading: it

was that ordinary cocaine (cocaine hydrochloride) and cocaine

base are distinct forms of the drug, and that the latter

commonly goes by the street name of "crack"; that she had

tested samples from each of the transactions involving the

defendants; and that each sample contained cocaine base.

Corroborated by recorded statements of Andino's co-

defendants, and by field tests conducted by Mersky, Wong's

testimony amply supports the district court's finding that

the defendants distributed cocaine base.

C. Martinez

In sentencing Martinez, the district court began with a

base offense level of 36 based on its finding that Martinez

was accountable for 506 grams of cocaine base. The court

granted a four-level reduction (because Martinez was a

minimal participant in the conspiracy, U.S.S.G. 3B1.2(a))

and added two levels (because Martinez had obstructed justice

by recklessly endangering others in fleeing from police,

-23-

U.S.S.G. 3C1.2). Martinez's total offense level of 34, and

his criminal history category of II, yielded a guideline

range of 168 to 210 months' imprisonment. But because of his

prior Connecticut drug conviction, Martinez was subject to a

mandatory minimum sentence of 240 months, 21 U.S.C.

841(b)(1)(A); U.S.S.G. 5G1.1(b), which the district judge

imposed.

On appeal, Martinez makes three claims of error. First,

although he was present at the May 30, 1991 transaction,

Martinez complains on appeal that he could not have foreseen

that there would be 506 grams of cocaine base involved.

Martinez did not raise this argument below. Accordingly our

review is only for plain error, Fed. R. Crim. P. 52(b);

United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993),

a difficult assertion here since foreseeability is a fact-

based inquiry.

We have already determined that the evidence was

sufficient to establish that Martinez was a member of the

conspiracy who joined in its general objectives. It was

entirely reasonable to infer that Martinez knew that a

substantial quantity of drugs were to be sold on May 30. As

we held in De la Cruz, "[a] defendant who conspires to

transport for distribution a large quantity of drugs, but

happens not to know the precise amount, pretty much takes his

chances that the amount actually involved will be quite

-24-

large." 996 F.2d at 1314.

Second, Martinez claims that there is an unfair

disparity between his sentence and those meted out to his co-

defendants. We have held that at least in the ordinary case,

"[t]he guidelines do not require the sentencing court to

consider related cases or to justify a sentence in terms of

the punishment meted out to co-defendants." United States v.

Font-Ramirez, 944 F.2d 42, 50 (1st Cir. 1991), cert. denied,

112 S. Ct. 954 (1992). In this case, moreover, Martinez's

sentence was wholly determined by a mandatory minimum

prescribed by statute. See 21 U.S.C. 841(b)(1)(A).

Martinez's final claim is a vague and perfunctory

collection of challenges to the validity of the sentencing

guidelines under the heading "Sentencing is Impermissibly

Draconian." Martinez does not explain in what way the

sentencing guidelines are inflexible or what mitigating

circumstances they have failed to reflect in this case. In

any event, Martinez's sentence was determined by a statutory

minimum sentence for defendants in Martinez's circumstances

and any alleged inflexibility in the guidelines is

irrelevant.

Martinez's further argument--that the Constitution

provides a right to "punishment that fits the crime"--is

resolved by Harmelin v. Michigan, 111 S. Ct. 2680 (1991).

That decision upheld, against a proportionality challenge, a

-25-

state regime imposing a mandatory sentence of life without

parole for possessing more than 650 grams of cocaine. See

also United States v. Lowden, 955 F.2d 128, 131 (1st Cir.

1992) (upholding, under Harmelin, a sentence of seven years

for distribution of 7.7 grams of LSD). Conspiracy to

distribute a large quantity of cocaine base is a serious

crime, the more so when committed by a prior offender. Given

Harmelin, we cannot say that Martinez's sentence was

unconstitutionally excessive.

-26-

D. Quinones

In sentencing Quinones, the district court began with a

base offense level of 36, based on a finding that he was

accountable for 896.2 grams of cocaine base. The court then

added three levels on account of Quinones' managerial role in

the conspiracy. U.S.S.G. 3B1.1(b). The resulting offense

level of 39, along with Quinones' criminal history category

of IV, yielded a guideline range of 360 months to life. The

court sentenced Quinones at the bottom of that range.

Quinones now challenges the district court's decisions as to

his role in the offense and the amount of drugs for which he

should be held accountable.

Section 3B1.1(b) of the guidelines provides that "[i]f

the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five

or more participants or was otherwise extensive, increase

[the base offense level] by 3 levels." Quinones does not

dispute that the conspiracy in this case involved at least

five participants; he argues, however, that he did not play a

managerial role. The government had the burden at sentencing

of proving by a preponderance of the evidence that an upward

adjustment was warranted. United States v. Ortiz, 966 F.2d

707, 717 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005

(1993). Despite Quinones' assertion that he was merely "a

foot soldier" like Martinez and Andino, we think that there

-27-

was sufficient evidence to sustain the district court's

finding. Special Agent Mersky testified that Delgado, the

acknowledged ringleader of the conspiracy, introduced

Quinones to her as his "partner." Moreover, the district

court found that Quinones had exercised supervisory control

over Andino at the abortive transaction on May 3. Quinones'

action in renegotiating the price of the drugs at the more

successful May 6 transaction also suggests a position of

authority.

Quinones rightly points out that one can imagine more

than one explanation for all of these events, but we think

that the view taken by the district court is not implausible.

United States v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993)

(sentencing court's choice between two plausible views of the

record cannot be clearly erroneous). Additionally, we have

said that "[m]anagerial status may attach if there is

evidence that a defendant, in committing the crime, exercised

control over, or was otherwise responsible for overseeing the

activities of, at least one other person." Id. The

imposition of the sentence enhancement here was not clear

error.

Like Andino, Quinones was not present at the May 30,

1991 transaction and thus claims that he should not have been

held accountable for the 506 grams of cocaine base involved

in that transaction. As we have noted above, there was

-28-

considerable evidence at trial that Quinones played a

prominent role in the conspiracy, making it reasonable to

infer that Quinones was well-acquainted with the scope of the

group's activities and plans. Quinones does not argue that

he had withdrawn from the conspiracy prior to May 30.

Accordingly, we uphold the district court's determination

that Quinones was accountable for the full amount of cocaine

base distributed over the life of the conspiracy.

Appellants' convictions and sentences are affirmed.

-29-