May 1, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1720
No. 94-1721
No. 94-1722
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY F. WEBSTER,
Defendant, Appellant.
No. 94-1778
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT A. BOUTHOT,
a/k/a ROBERT H. BOUTHOT,
Defendant, Appellant.
No. 94-1846
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL D. RAVELO,
Defendant, Appellant.
No. 94-1862
UNITED STATES OF AMERICA,
Appellee,
v.
WARREN R. HUNTINGTON,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court, issued on April 27, 1995, is amended
as follows:
On page 3, line 18, replace "Walker's" with "Webster's".
On page 14, line 5 of second full paragraph, insert a comma after
"because".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1720
No. 94-1721
No. 94-1722
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY F. WEBSTER,
Defendant, Appellant.
No. 94-1778
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT A. BOUTHOT,
a/k/a ROBERT H. BOUTHOT,
Defendant, Appellant.
No. 94-1846
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL D. RAVELO,
Defendant, Appellant.
No. 94-1862
UNITED STATES OF AMERICA,
Appellee,
v.
WARREN R. HUNTINGTON,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Circuit Judge,
Campbell, Senior Circuit Judge,
and John R. Gibson,* Senior Circuit Judge.
Thomas F. Hallett, by Appointment of the Court, for appellant
Anthony F. Webster.
F. Mark Terison, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, was on brief for the United
States.
Thomas A. Dyhrberg, by Appointment of the Court, with whom
Thomas A. Dyhrberg, P.A. was on brief for appellant Robert A. Bouthot.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney, and George T. Dilworth,
Assistant United States Attorney, were on brief for the United States.
James R. Bushell, by Appointment of the Court, with whom Law
Office of James R. Bushell was on brief for appellant Manuel D.
Ravelo.
F. Mark Terison, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, and George T. Dilworth,
Assistant United States Attorney, were on brief for the United States.
Jeffrey M. Smith, by Appointment of the Court, with whom Peters,
Smith & Moscardelli was on brief for appellant Warren R. Huntington.
Michael M. DuBose, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, and Raymond Hurley,
Assistant United States Attorney, were on brief for the United States.
April 27, 1995
*Of the Eighth Circuit, sitting by designation.
BOUDIN, Circuit Judge. Anthony Webster, Robert Bouthot
and Manuel Ravelo were convicted of various drug offenses
stemming from their involvement with a cocaine distribution
ring centered in Portland, Maine; Warren Huntington was
convicted of three offenses arising from an unrelated bank
fraud scheme. The four were sentenced to prison terms
ranging from 30 to 188 months, and each now challenges his
sentence.
I. Webster
On December 3, 1993, Webster pled guilty to eight
separate offenses, including the use of a firearm during a
drug trafficking crime. The guideline sentencing range for
all offenses but the firearm offense was calculated to be 63
to 78 months. By statute the firearm offense carried a
mandatory minimum sentence of 60 months to run consecutively
to any other sentence imposed. See 18 U.S.C. 924(c).
Before sentencing the government moved for a downward
departure from the guideline sentencing range in recognition
of Webster's cooperation and testimony in prosecuting the
other members of the drug conspiracy. The government's
motion for departure invoked U.S.S.G. 5K1.1 and thus,
according to the government, sought a downward departure for
the guideline offenses only. See U.S.S.G. 5K1.1 (allowing
departure from guidelines on government's motion). The
government did not request a downward departure under 18
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U.S.C. 3553(e) from the statutory mandatory minimum for the
firearm offense.
At sentencing, Webster did not request the court to
depart below the 60-month sentence for the firearm offense,
believing that the court lacked the authority to do so
because the government had not moved under section 3553(e).
Instead, Webster pressed the court to award a proportionate
reduction of his total sentence--subject to a 60-month floor-
-and not just the portion of his sentence governed by the
guidelines. Webster then argued for an overall sentence of
72 to 78 months.
The district court responded that this "defeats the
whole purpose of the statutory mandatory minimum" and that it
had to "set that aside" for purposes of determining a
downward departure of the guideline sentence. The district
court then sentenced Webster to a total of 90 months: 60
months for the firearm offense and 30 months for the other
offenses, to run consecutively. The 30-month sentence
represented more than a 50 percent reduction in the guideline
minimum of 63 months for those offenses.
On appeal, as in the district court, Webster challenges
only the district court's refusal to consider his entire
sentence when deciding how far to depart on the guideline
offenses. Consequently, we need not decide whether the
government's motion under U.S.S.G. 5K1.1 would have
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triggered the court's authority under 18 U.S.C. 3553(e) to
depart below the statutory minimum, an issue that has divided
the circuits. Compare United States v. Wills, 35 F.3d 1192
(7th Cir. 1994), with United States v. Sanchez, 32 F.3d 1330
(8th Cir. 1994), cert. denied, 115 S. Ct. 1119 (1995). See
also Wade v. United States, 112 S. Ct. 1840, 1843 (1992)
(noting circuit split). The government has moved to
dismiss Webster's appeal on the ground that we lack
jurisdiction to review the extent of a district court's
departure from the guideline sentencing range. We do
normally lack jurisdiction over such a challenge, because the
extent of any permitted departure is left to the district
court's discretion. United States v. Pighetti, 898 F.2d 3, 4
(1st Cir. 1990). But where the departure may have been
affected by a mistake of law, as Webster alleges here,
appellate jurisdiction exists. See United States v. Mariano,
983 F.2d 1150, 1153 (1st Cir. 1993).
To decide this case without adopting a position on the
issue that divides the circuits is somewhat artificial. For
if the Seventh Circuit view were followed, the district court
would have power to depart even as to the mandatory minimum.
But we do not want to take sides here on the larger issue
which has neither been briefed nor argued. Thus, solely for
purposes of this case, we assume arguendo (as the district
court did without that qualification) that the government's
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failure to ask for a departure from the statutory minimum did
prevent the district court from departing to a point below
that figure.
On that assumption, we agree that the district court's
position has considerable force: any reduction of a
guideline sentence to offset even in part a consecutive
statutory minimum tends to undercut Congress' insistence on
the statutory minimum. At the same time, Congress has given
the sentencing court almost unreviewable discretion to decide
the amount of the departure after a 5K1.1 motion. To tell
the district court that it must ignore any factor that may
seem logically relevant arguably collides with this
intention.
We conclude that in departing from a guideline sentence
the district court is free to exercise its own judgment as to
the pertinence, if any, of a related mandatory consecutive
sentence. Should the district court think that the latter
has some role along with other factors in fixing the extent
of a guideline departure in a particular case, that is within
its authority; and should that court decline to consider the
mandatory minimum in fixing the other sentence, that too is
within its authority. For this court to decide upon the
ingredients of a departure one by one would go very far
toward defeating discretion.
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We are confident that this difference in perspective had
no impact on the sentence in this case. Assuming that the
statutory minimum sentence fixed a floor, the district court
was free not to consider the statutory minimum in fixing the
guideline sentence. We have no reason whatever to think that
the district court would have altered its position, which
rests on a rational policy judgment, if it had been told that
this choice was a matter of its discretion and not of law.
Still less do we have any reason to think that the
district court's sentence would have been less if it had
considered the mandatory minimum sentence. The district
court said that the large departure it granted was based on
the scope of Webster's cooperation and the resulting benefit
to the government. It went on to say that this reduction was
"as lenient as permissible" given the seriousness of the
defendant's criminal conduct. Indeed, if the district court
had wanted to depart further it had ample room to do so.
This is not a case--as some are--where the district
court expressed a desire to impose a lower sentence but
thought itself blocked by a supposed legal barrier. Compare
United States v. Rivera, 994 F.2d 942, 953 (1st Cir. 1993).
Here, the consecutive sentence was mentioned by the district
court only after counsel for Webster sought to introduce it
as a mitigating factor. The district court thought that it
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should not be so considered and was free to make this
judgment. Accordingly we uphold the sentence.
II. Bouthot
On February 18, 1994, Bouthot pled guilty to conspiracy
to possess cocaine with intent to distribute, 21 U.S.C.
841, 846. On July 1, 1994, after a one-day hearing, Bouthot
was sentenced to 151 months' imprisonment. The district
court found that Bouthot was responsible for 3.83 kilograms
of cocaine, resulting in a base offense level of 30. The
court also added two levels for Bouthot's supervisory role in
the drug ring, and declined to make a downward adjustment for
acceptance of responsibility. U.S.S.G. 3B1.1, 3E1.1.
With a total offense level of 32 and a criminal history
category of III, the guideline sentencing range was 151 to
188 months, and the court chose the minimum.
The district court based the drug quantity on the
testimony of Webster at Bouthot's sentencing hearing.
Webster said that he provided Bouthot with one to three
ounces of cocaine three times a month for 14 months, and made
seven trips to New York with Bouthot to buy cocaine, each
trip yielding six to twelve ounces of cocaine but with one
trip netting a half kilogram. Using middle-to-low figures
for the drug amounts, and adjusting for possible double
counting for drugs from the New York trips subsequently given
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to Bouthot, the district court calculated that Bouthot was
responsible for 3.83 kilograms.
Bouthot claims that Webster's testimony was an
unreliable basis for establishing drug quantity. It is true
that under U.S.S.G. 6A1.3(a) information used for
sentencing must have sufficient indicia of reliability to
support its probable accuracy. See United States v. Tavano,
12 F.3d 301 (1st Cir. 1993). Bouthot cites to a number of
inconsistencies with Webster's previous accounts and points
out that Webster was an admitted perjurer, a drug user, and a
turncoat who received a substantially reduced sentence for
implicating others.
Credibility assessments at sentencing are the province
of the district court and are respected on appeal unless
clearly erroneous. United States v. Olivier-Diaz, 13 F.3d 1,
4 (1st Cir. 1993). True, Webster was a witness to be
approached with caution; indeed, he had twice perjured
himself in earlier proceedings before the district court.
But these lies occurred before Webster had agreed to
cooperate with the government. The district court was free
to conclude that, once the game was up, Webster had wisely
chosen to cooperate fully and truthfully with the government
in the hope of receiving a lightened sentence.
Bouthot next argues that, even assuming the reliability
of Webster's testimony, the mean "per transaction" figures
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used by the district court as multipliers lacked adequate
evidentiary support; the court settled on two ounces as the
per transaction amount for Bouthot's regular supply and eight
ounces as the per trip amount for six of the seven New York
trips. Webster had testified unequivocally that he gave
Bouthot one to three ounces three times a month and that they
purchased six to twelve ounces on their typical New York
trip. Bouthot did not object to the district court's
method of drug computation at the time of sentencing and
therefore has waived this issue. Uricoechea-Casallas, 946
F.2d at 166. In any event, we review the district court's
drug quantity determinations for clear error, United States
v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993), and find no such
error here. Where no drugs have been seized, the guidelines
instruct the district court to approximate the amounts
involved, U.S.S.G. 2D1.1 comment. (n.12), and we uphold
such an approximation as long as it represents a reasoned
estimate of quantity. Morillo, 8 F.3d at 871.
In this case, the figures chosen by the district court
were the mean figure for the small buys and on the
conservative side for the New York trips, and they were drawn
from ranges with relatively tight margins. This case is
quite unlike United States v. Sepulveda, 15 F.3d 1161, 1197
(1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994), where
we found it error to use the midpoint between four ounces and
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one kilogram as the average transaction. All in all, we
think that the figures chosen by the district court in this
case represent a defensible estimate of drug quantity based
on the available evidence, and this is all that is required.
Morillo, 8 F.3d at 871. See also United States v.
Innamorati, 996 F.2d 456, 490-91 (1st Cir. 1993), cert.
denied, 114 S. Ct. 409 (1994).
Bouthot also says that the district court erred in
failing to award him a two-point reduction for acceptance of
responsibility. Bouthot did plead guilty to the drug charge
but a plea of guilty is not a guarantee for receiving the
reduction. United States v. Bradley, 917 F.2d 601, 606 (1st
Cir. 1990). The district court found that Bouthot had
understated his criminal involvement. This in turn warranted
a finding that Bouthot had not fully accepted responsibility.
See U.S.S.G. 3E1.1 comment. (n.1).
The two-level adjustment for Bouthot's role in the
offense is also supported. Webster and a DEA agent both
testified that Bouthot had recruited an individual named
Conwell to sell small amounts of cocaine for him, paying
Conwell a fixed commission on every sale and providing him
with housing from which to operate. This testimony, accepted
by the district court, is more than enough to qualify Bouthot
for a two-point adjustment for exercising a leadership or
supervisory role in the offense. See U.S.S.G. 3B1.1
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comment. (n.4). United States v. Fuller, 897 F.2d 1217,
1219-22 (1st Cir. 1990).
III. Ravelo
Ravelo was convicted by a jury of conspiracy to possess
cocaine with intent to distribute. On July 21, 1994, the
district court sentenced him to 188 months' imprisonment.
The court determined that Ravelo's base offense level was 34,
based on a drug quantity finding of 198.1 grams of cocaine
base, also known as crack. No upward or downward adjustments
were made. With no prior criminal record, Ravelo's total
offense level yielded a guideline sentencing range of 151 to
188 months, and the court sentenced him at the top of the
range.
As with Bouthot, Webster was the primary witness at
Ravelo's sentencing hearing. Webster testified that Ravelo
was his New York source for cocaine and that he purchased on
average 6 to 8 ounces twice per month from 1990 to 1993.
Consistent with his testimony at Bouthot's sentencing
hearing, Webster said that at times the amounts were upwards
of 11 to 13 ounces and that once he purchased a half kilogram
from Ravelo. Webster also testified that in the summer of
1993 he purchased from Ravelo seven ounces of crack made in
Ravelo's kitchen.
At sentencing the district court accepted Webster's
testimony and found that Ravelo had sold Webster seven ounces
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(198.1 grams) of crack in the summer of 1993. The crack
finding alone placed Ravelo at a base offense level of 34.
See U.S.S.G. 2D1.1(c)(5). Ravelo, like Bouthot, claims
that Webster's testimony was unreliable. But Webster was
very clear about the crack transaction--how much was
involved, who was there, and how it was made. This testimony
was also consistent with what Webster had told law
enforcement agents during his debriefing. For the reasons
already set forth with respect to Bouthot, the district court
was free to conclude that Webster's testimony was credible
and sufficiently reliable.
Ravelo next claims that he should have been held
accountable for no more than 1.26 kilograms of cocaine,
because this was the amount for which Webster was sentenced,
and both participated in the same transactions. Webster's
sentence was based on 1.26 kilograms of cocaine, an amount
computed by a probation officer and stipulated to by the
parties at sentencing. The crack transaction is excluded
from the stipulated amount but the discrepancy is easily
explained.
Evidence of the crack transaction apparently first
surfaced during Webster's debriefing by law enforcement
agents. But before he spoke, Webster obtained a written
promise from the government that none of the information he
provided would be used against him (with exceptions not here
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relevant). Under the guidelines, this promise immunized
Webster from having the crack transaction count towards his
sentence. See U.S.S.G. 1B1.8(a).
We see no problem with holding Ravelo responsible for
the greater drug quantity actually proved at his sentencing
hearing. First and foremost, he did not cooperate with the
government and thereby receive immunity for the crack
transaction. Although the guidelines generally seek
uniformity in sentencing, they also encourage divergent
treatment for those who cooperate, in order to promote
greater cooperation with law enforcement. Given Ravelo's
decision not to cooperate, he has no basis for complaining
about leniency to someone who did cooperate.
Ravelo's final challenge to his sentence relates to
comments made by the district court at the time of sentencing
pertaining to Ravelo's alien status. Ravelo, a citizen of
the Dominican Republic, claims that the court's comments
indicate that he was sentenced more harshly because of his
alienage and that a constitutional violation resulted.
Compare United States v. Gomez, 797 F.2d 417, 418-21 (7th
Cir. 1986) with United States v. Leung, 40 F.3d 577, 585-87
(2d Cir. 1994) and United States v. Borrero-Isaza, 887 F.2d
1349, 1353-56 (9th Cir. 1989).
The district court made clear that it was sentencing
Ravelo to the high end of the guideline range because of his
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continued dishonesty and defiance. Ravelo's alien status was
raised by Ravelo's counsel who requested a lighter sentence
because, as an alien, Ravelo would be subject to deportation
upon his release from prison. The sentencing judge said, in
substance, that Ravelo was not entitled to leniency simply
because he faced deportation, for this would undermine the
deterrent value of Ravelo's sentence. It is thus clear that
the district court did not punish Ravelo more severely
because of his alien status.
IV. Huntington
Huntington pled guilty to two counts of bank fraud, 18
U.S.C. 1344, and one count of conspiracy to commit bank
fraud, 18 U.S.C. 371, 1344. The scheme involved the
forging and cashing of blank checks stolen from a local
health center; the checks were stolen by Webster, forged by
Huntington and cashed by numerous individuals at various
branches of the Casco Northern Bank on newly opened accounts.
Apart from Webster's membership in both conspiracies, the
bank fraud scheme was unrelated to the drug ring. Huntington
pled guilty to the three fraud charges against him on
December 6, 1993.
Some three months later, on the morning of his
presentence conference, Huntington moved to withdraw his plea
on the grounds of involuntariness; Huntington claimed that he
had been threatened by two codefendants--by Webster and by
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Huntington's own nephew Stephen Huntington--to plead guilty
or face physical harm. On April 29, 1994, the court held an
evidentiary hearing on the plea-withdrawal motion, at which
Huntington was the sole witness. At the hearing's
conclusion, the court denied the motion, finding that
Huntington's story was a blatant, last-minute fabrication.
The court sentenced Huntington on July 22, 1994.
Huntington's conduct equated to an offense level of 11, which
included a two-level increase for more than minimal planning.
U.S.S.G. 2F1.1(b)(2)(A). The court imposed a two-level
upward adjustment for Huntington's organizational role in the
scheme, U.S.S.G. 3B1.1(c), and a further two-level upward
adjustment for obstruction of justice, based primarily on
Huntington's perjurious testimony at the plea-withdrawal
hearing. U.S.S.G. 3C1.1. With a criminal history category
of III, the resulting guideline sentencing range was 24 to 30
months, and the court sentenced him to the maximum amount of
30 months.
In making an upward adjustment for Huntington's role in
the offense, the district court found as follows:
[T]his defendant collaborated with Webster as to
devise, carry out this scheme, forge and negotiate
stolen checks, and that he typed false and
fictitious amounts and information about the payees
on several stolen checks. The Court further finds
that he forged the authorized signatures and
assisted Webster in giving instructions to other
participants in the scheme, directing their efforts
in the offense conduct.
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Based on the first sentence of these findings, and on certain
other comments made by the sentencing judge, Huntington
argues that the district court misunderstood the legal
standard and thought it enough that Huntington was
extensively involved in the conspiracy. The guideline
requires that Huntington must have controlled or organized
the activities of at least one other participant in the bank
fraud scheme. U.S.S.G. 3B1.1(c); Fuller, 897 F.2d at 1220;
United States v. Castellone, 985 F.2d 21, 26 (1st Cir. 1993).
At sentencing the court specifically found that, in
addition to playing a central role in devising the whole
scheme, Huntington directed and instructed various
individuals on how to negotiate the forged checks at the
banks. While the former conduct provides evidence suggesting
an enhanced role, see U.S.S.G. 3B1.1 comment. (n.4), the
latter conduct conclusively establishes that Huntington
controlled or organized at least one other participant.
The record supports this assessment. There was evidence
that Huntington instructed an individual named Jolin how to
present the forged checks for acceptance and directed him to
different branches of Casco Northern Bank for that purpose.
Steven Huntington, the appellant's nephew, testified at the
sentencing hearing that the appellant recruited him to take
part in the scheme and that the appellant "did all the
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talking" when distributing the forged checks to him and
another check casher named Glantz. At the very least,
Huntington served as Webster's lieutenant, and the guidelines
do not limit supervision to one person. U.S.S.G. 3B1.1
comment. (n.4). Huntington says that the role-in-the-
offense enhancement amounts to impermissible double counting
in view of the district court's earlier enhancement for more
than minimal planning. The two-level increase for more than
minimal planning was based on the fact that the bank fraud
scheme involved repeated episodes of fraud; the two-level
increase for role in the offense, as we have just discussed,
was predicated on Huntington's direction and supervision of
others. Because the two adjustments were based on separate
factors, there was no double counting. United States v.
Balogun, 989 F.2d 20, 23-24 (1st Cir. 1993).
Huntington also contests the upward departure for
obstruction of justice under U.S.S.G. 3C1.1. In making
this adjustment, the court relied upon three separate
instances of alleged perjury, but any one is sufficient.
United States v. Tracy, 36 F.3d 199, 201 (1st Cir.), cert.
denied, 115 S. Ct. 609 (1994). We confine ourselves to the
district court's finding that Huntington had testified
falsely at the plea-withdrawal hearing when he claimed that
he was "absolutely" innocent of the bank fraud charges.
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Under United States v. Dunnigan, 113 S. Ct. 1111, 1116
(1993), a witness commits perjury if he or she "gives false
testimony concerning a material matter with a willful intent
to provide false testimony, rather than as a result of
confusion, mistake or faulty memory." In Dunnigan, the
Supreme Court instructed that a sentencing court must make
independent findings necessary to establish the enhancement,
preferably addressing each element of the alleged perjury in
"a separate and clear finding." Id. at 1117. Huntington
argues that the court's findings are legally insufficient to
support a determination of perjury under the Dunnigan
standard. We disagree. On the first episode of perjury the
court found as follows:
The Court bases its findings from the testimony of
this defendant . . . at the proceedings to
determine whether he should be permitted to
withdraw his guilty plea. The Court is satisfied
that his disclaimer of participation in these
offenses in this offense conduct at that time, his
protestation of innocence [was] false, that that
testimony related to a material matter and that it
was intended to influence the judgment of the Court
in making the determination as to whether he should
be permitted to withdraw his plea of guilty. In
that respect the Court is satisfied there was an
obstruction of justice by this defendant.
(emphasis added).
These findings encompass all the predicates for perjury and
thus satisfy the requirements of Dunnigan.
As for the factual bases for those findings, the record
amply supports the judge's ruling under the clear error
standard. Tracy, 36 F.3d at 202. At the plea-withdrawal
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hearing Huntington testified that he was absolutely innocent
of the bank fraud charges brought against him, claiming that
he had been duped into signing the checks by Webster. But at
sentencing four months later Huntington admitted his knowing
participation in the bank fraud scheme, although not to the
full extent for which the district court ultimately found him
responsible. As such, Huntington's protestations of
"absolute" innocence at the withdrawal hearing were not in
any way ambiguous and amounted to perjury. See United States
v. Austin, 948 F.2d 783, 789 (1st Cir. 1991) (perjury
committed at withdrawal hearing requires obstruction of
justice adjustment).
For the foregoing reasons the sentences of all four
appellants are affirmed.
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