United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 95-2109
UNITED STATES,
Appellee,
v.
MELVIN B. LAGASSE, JR.,
Defendant, 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,
Aldrich, Senior Circuit Judge,
and Stahl, Circuit Judge.
Walter F. McKee with whom Lipman & Katz, P.A. was on brief for
appellant.
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 appellee.
June 25, 1996
STAHL, Circuit Judge. Defendant-appellant Melvin
STAHL, Circuit Judge.
B. Lagasse, Jr., pleaded guilty to a drug trafficking
conspiracy and was sentenced to 264 months' incarceration.
Lagasse now appeals three aspects of his sentence: (1) an
enhancement for possession of a dangerous weapon; (2) an
enhancement for obstruction of justice; and (3) the denial of
an adjustment for acceptance of responsibility. We affirm in
part, vacate in part and remand.
I.
I.
Factual Background and Prior Proceedings
Factual Background and Prior Proceedings
We accept the facts found in the uncontested
portions of the Presentence Investigation Report ("PSR") and
the sentencing hearing transcript. See United States v.
Lindia, 82 F.3d 1154, 1158 (1st Cir. 1996). Additional facts
pertinent to the issues in this appeal are discussed below.
A. Offense Conduct
In the summer of 1994, the Maine Drug Enforcement
Agency ("MDEA") began investigating a crack cocaine ring in
the Lewiston/Auburn area. The investigation revealed that
the drug suppliers, Raul Baez, Jesus Baez and Angel Baez,
operated out of Lawrence, Massachusetts, and that Jose
Guzman, Toni Lemieux Naftali ("Naftali") and Jose Mejia-
Martinez transported the drugs to Maine for ultimate
distribution. Appellant Melvin Lagasse ("Lagasse"), his
brother, Michael Lagasse, and three others, Marlane Driggers,
-2-
2
Lisa Booth and Thomas Booth, would also on occasion transport
the crack cocaine ("crack") to Maine and sell it in Lewiston
and Auburn.
From July through early September 1994, Lagasse
purchased about 100 bags of crack per week from various
persons including Naftali, Jesus Baez, Guzman, Driggers and
Mejia-Martinez. Lagasse procured the drug both for
distribution and for personal use. He continued to use and
sell crack until December 7, 1994, when he was arrested while
in possession of almost 100 grams of crack.
On December 20, 1994, a grand jury returned an
indictment charging in Count I that Lagasse conspired with
the Baezes, Driggers, Michael Lagasse, the Booths and others
to distribute and to possess with intent to distribute in
excess of fifty grams of cocaine base (i.e., crack). Lagasse
pleaded guilty to that count in February 1995; other counts
against him were dismissed.
B. Sentencing
The district court held a sentencing hearing on
September 14, 1995, during which it took evidence and heard
the testimony of nine witnesses, including Lagasse. At the
conclusion of the hearing, the court made the following
findings and rulings which are at issue in this appeal: (1)
that an upward adjustment for possession of a dangerous
weapon was applicable because Lagasse was involved in a
-3-
3
knife-point robbery of drugs and money from Naftali and
Guzman; (2) that an upward adjustment for obstruction of
justice was appropriate because Lagasse assaulted a witness
in retaliation for, and to prevent his further cooperation
with authorities; and (3) that a downward adjustment for
acceptance of responsibility was not warranted both because
Lagasse obstructed justice and because he attempted to have
drugs smuggled to him in prison where he was awaiting
sentencing.
II.
II.
Discussion
Discussion
A. Standard of Review
We review a sentencing court's factual
determinations, which must be found by a preponderance of the
evidence, for clear error. United States v. McCarthy, 77
F.3d 522, 535 (1st Cir. 1995). We review questions of law,
including the applicability of a sentencing guideline, de
novo. Id.
B. Enhancement for Possession of a Dangerous Weapon
Lagasse challenges the district court's application
of a dangerous weapon enhancement to his sentence. The
pertinent sentencing guideline, U.S.S.G. 2D1.1(b)(1),
provides for a two-level increase in the base offense level
-4-
4
"[i]f a dangerous weapon (including a firearm) was
possessed."1 Application note 3 to that guideline provides,
in part:
The enhancement for weapon possession
reflects the increased danger of violence
when drug traffickers possess weapons.
The adjustment should be applied if the
weapon was present, unless it is clearly
improbable that the weapon was connected
with the offense.
U.S.S.G. 2D1.1, comment. (n.3).
At the sentencing hearing, Naftali, a
coconspirator, testified that, throughout the day of
September 8, 1994 (a point within the indictment period of
the charged conspiracy), Lagasse repeatedly requested and
received crack from her. Naftali stated that she eventually
rebuffed his requests for more of the drug because he
continued to use rather than sell it. Later, in the early
morning hours of September 9, Lagasse returned to Naftali's
apartment and requested more crack from her and her roommate,
Guzman. Both refused, and Lagasse left. Seconds later,
however, Lagasse forcibly reentered the apartment with one
Michael Weaver who walked into Guzman's room and held a knife
to Guzman's neck; Lagasse stood close behind Weaver during
1. Unless otherwise indicated, all guideline citations are
to the November 1994 United States Sentencing Commission's
Guidelines Manual.
-5-
5
this encounter. Lagasse and Weaver then took all of the
drugs and cash in the apartment and left.2
Based on this event, the court found the weapon
enhancement appropriate, explaining:
I observe first of all that the
circumstances here are rather unique in
the application of this adjustment
because here the possession of the weapon
was not in furtherance of the drug
conspiracy in the sense that Weaver with
Lagasse's connivance was trying to steal
from the conspiracy.
Nevertheless, [Application note 3]
points out that the reason for the
adjustment is the increased danger of
violence when drug traffickers possess
weapons. I certainly attribute Weaver's
possession of the weapon to this
defendant because they were there
jointly.3 And I conclude although it is
an unusual case that the circumstances
here fit the definition of Application
Note 3 and call for the two level
increase.
We begin our analysis with a brief review of the
basic principles underlying the application of the dangerous
weapon enhancement. For the enhancement to be warranted, a
certain nexus between the weapon and the offense must be
shown. See United States v. Pineda, 981 F.2d 569, 573 (1st
Cir. 1992). It need not be shown, however, that the weapon
was used, or was intended to be used, to perpetrate the drug
2. Later that same day, police arrested Naftali and Guzman
after discovering large quantities of crack in their
automobile.
3. On appeal, Lagasse does not contest the court's
attribution of the knife possession to him.
-6-
6
offense. United States v. Castillo, 979 F.2d 8, 10 (1st Cir.
1992); see also, United States v. Ruiz, 905 F.2d 499, 507
(1st Cir. 1990). Rather, for the purposes of the
enhancement, we have repeatedly recognized that
"when the weapon's location makes it
readily available to protect either the
participants themselves during the
commission of the illegal activity or the
drugs and cash involved in the drug
business, there will be sufficient
evidence to connect the weapons to the
offense conduct."
United States v. Ovalle-Marquez, 36 F.3d 212, 224 (1st Cir.
1994) (quoting United States v. Corcimiglia, 967 F.2d 724,
727 (1st Cir. 1992)), cert. denied, 115 S. Ct. 947, 1322
(1995). In other words, the presence of a dangerous weapon
at some point during the underlying drug crime may indicate
the probability of a "facilitative nexus between the [weapon]
and the crime." United States v. Gonzalez-Vazquez, 34 F.3d
19, 25 (1st Cir. 1994).
Once the presence of a weapon is established, the
defendant may avoid the enhancement only by demonstrating
"special circumstances" rendering it "clearly improbable"
that the weapon was connected to the drug trafficking
offense. Ovalle-Marques, 36 F.3d at 224. An example of a
"special circumstance" is provided by the guideline
commentary: "the enhancement would not be applied if the
defendant, arrested at his residence, had an unloaded hunting
rifle in the closet." U.S.S.G. 2D1.1, comment. (n.3).
-7-
7
Here, the district court's factual findings are
unassailable and Lagasse does not challenge them on appeal:
during the indictment period, Lagasse was involved in the
robbing of a coconspirator,4 at knife point, of drugs and
money. What the parties do dispute is the district court's
application of the guidelines to these facts. While we give
"due deference" to the court's exercise in this regard, 18
U.S.C. 3742(e), if its application is contrary to the law,
we must correct the error. See United States v. Grandmaison,
77 F.3d 55, 560 (1st Cir. 1996).
The government concedes that the knife was used to
rob fellow conspirators, but contends that the use of the
weapon was intended to "protect" Lagasse's access to the very
drugs involved in the conspiracy and to "enforce" his demand
for more crack to sell. The government emphasizes that
Lagasse used the knife on the very premises from which the
conspiracy was carried out and "during the active course of
the conspiracy" and concludes that thus, it was not "clearly
improbable" that the knife was connected with that offense.
Finally, the government relies on the expressed policy
concern behind the weapon enhancement: the increased danger
4. Although Guzman and Naftali were not specifically named
in the indictment as coconspirators, they were so identified
in the prosecution's version of the events, which Lagasse
accepted when pleading guilty.
-8-
8
of violence when drug traffickers possess weapons. U.S.S.G.
2D1.1, comment. (n.3).
Lagasse responds that the armed robbery of drugs
and money from a coconspirator was clearly unrelated to the
charge to which he pleaded guilty: conspiracy to possess with
intent to distribute crack. He contends that the robbery was
adverse to the conspiracy's interests, and thus the knife
cannot fairly be "connected" with the offense within the
meaning of the guideline. We agree.
The government's observation that the knife was
"present" during drug trafficking activity, on the facts of
this case, misses the mark. It is true that we have
recognized that the "presence" of a weapon at the site of
drug trafficking activity supports the enhancement. See
United States v. Almonte, 952 F.2d 20, 25 (1st Cir. 1991),
cert. denied, 503 U.S. 1010 (1992). In addition, however, we
have invariably observed that the weapon's presence implied
its purpose to "protect" some aspect of the drug operation --
e.g., the drugs or the participants -- even if it was not
actually used to perpetrate the crime. See, e.g., Ovalle-
Marquez, 36 F.3d at 224; Pineda, 981 F.2d at 574; Castillo,
979 F.2d at 11; United States v. Preakos, 907 F.2d 7, 9 (1st
Cir. 1990); Ruiz, 905 F.2d at 508. Thus, our caselaw
establishes only that a weapon's presence during the criminal
activity will trigger the enhancement when the circumstances
-9-
9
permit an inference that the weapon served to protect or
otherwise facilitate the offense conduct.
Here, in contrast, the weapon played a role that
was entirely adverse to the "interests" of the crime.
Lagasse's offense, to which the enhancement attached, was
criminal conspiracy -- an agreement with others to engage in
unlawful conduct. As the district court observed, the
robbery was "not in furtherance of the drug conspiracy" but,
in effect, a theft from the conspiracy -- an act
quintessentially antithetical to the offense.5 The facts
found by the district court indisputably negate the inference
that normally arises from the presence of a weapon during
drug trafficking activity. Had Lagasse been convicted of a
drug possession or distribution crime with respect to the
drugs stolen from Guzman, the case might have been different;
but that is not what happened here.6
Thus, we hold that the facts of this case do not
come within the seemingly broad purview of the weapon
5. There is no evidence in the record that Lagasse sold any
of the drugs taken from Guzman (although there is a
suggestion that he shared some of them with his brother,
Michael Lagasse).
6. The government incorrectly cites, as applicable here, a
previous version of 2D1.1(b), which contained the following
underscored language: "If a dangerous weapon (including a
firearm) was possessed during commission of the offense,
increase by 2 levels." See Amendment 394, U.S.S.G. App. C.
The Sentencing Commission deleted that language by amendment,
effective November 1, 1991. Id.
-10-
10
enhancement. See U.S.S.G. 2D1.1, comment. (n.3)
(indicating that the enhancement applies if the weapon was
somehow "connected" with the offense). Moreover, we are
unpersuaded by the government's reliance on the guideline's
underlying concern about the increased danger of violence
when drug traffickers possess weapons. The guideline is not
intended to cover every instance in which a drug trafficker
possesses a weapon. Rather, the enhancement applies when the
weapon possession has the requisite nexus to the relevant
offense. Because the court erred in its interpretation and
application of the weapon enhancement, that part of Lagasse's
sentence must be vacated.
C. Enhancement for Obstruction of Justice
Lagasse also claims that the court erred in finding
that he obstructed justice and in adjusting his sentence
accordingly. Sentencing Guideline 3C1.1 provides: "If the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant
offense, increase the offense level by 2 levels."
At the sentencing hearing, an agent with the United
States Immigration and Naturalization Service testified that,
on December 22, 1994, he heard a general discussion among
Lagasse and his codefendants (who, at the time, were awaiting
arraignment in a lockup area) relating their belief that two
-11-
11
individuals named Scott and Patty Poulin were "the rats" in
the operation and that their cooperation with authorities was
the cause of the arrests. A corrections officer at the
Kennebec County jail testified that, on the morning of May
22, 1995 -- a time after which Lagasse had pleaded guilty but
before his sentencing -- Lagasse approached Scott Poulin in
the jail recreation yard and punched him. The officer
further testified that Poulin was groggy and bleeding from
the mouth and nose, and was sent to the prison infirmary. An
agent with the MDEA testified that, in July 1995, he asked
Poulin about the assault, and Poulin told him that Lagasse
"sucker punched" him and stated, "I know you're a rat, this
is for being a rat. You better . . . stop talking."7
From this evidence, the district court found that
Lagasse struck Poulin because of Poulin's cooperation "at a
time when these matters were still pending" and thus, the
obstruction of justice enhancement was warranted. On appeal,
Lagasse contends that the obstruction enhancement was
improper because, while he may have struck Poulin in
retaliation for being a "rat," there could not have been an
obstruction of justice because he had already pleaded guilty.
To this end, he asserts that Poulin had nothing to contribute
7. In contrast, Lagasse testified that he never hit Poulin.
He further stated that he did not know that Poulin was
cooperating with the authorities, and pointed out that he
(Lagasse) was the one who testified against Poulin before a
grand jury. Lagasse does not press this position on appeal.
-12-
12
to the sentencing determination and, in fact, was in no way
involved with that disposition. Lagasse is wrong for two
reasons.
First, the district court supportably found that
Lagasse knew of Poulin's cooperation and assaulted him to
prevent further similar conduct. Although Lagasse had
already pleaded guilty to the offense, he struck Poulin after
the preparation of his PSR but before his sentencing. While
Poulin was not specifically mentioned in the PSR, he had been
separately indicted as a coconspirator of Raul and Jesus
Baez, two of Lagasse's codefendants. Because Lagasse
believed that Poulin was the "rat" in the operation, a
reasonable inference from the evidence is that Lagasse
thought that Poulin could provide information, such as drug
quantity, that would affect his sentence. In light of this
evidence, especially Lagasse's warning to "stop talking," we
cannot say that the court clearly erred in finding that
Lagasse's assault on Poulin was intended to prevent any
further cooperation in the proceedings against Lagasse. The
fact that Poulin did not, or even could not have, contributed
anything to the sentencing process is irrelevant because the
enhancement applies to attempted, as well as actual, witness
intimidation. See U.S.S.G. 3C1.1, comment. (n.3(a)); see
United States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994)
-13-
13
(finding enhancement proper where the defendant plotted to
kill a fictional informant).
Second, even if the evidence only supported a
finding that the assault was intended to retaliate for past
cooperation (and not to prevent future acts), the obstruction
of justice enhancement would be appropriate. Application
note 3(i) to the obstruction guideline states that the
enhancement applies for "conduct prohibited by 18 U.S.C.
1501-1516." U.S.S.G. 3C1.1, comment. (n.3(i)). In
turn, 18 U.S.C. 1513(b) prohibits the infliction of bodily
injury with the intent to retaliate for the providing of
information relating to a federal offense. Here, there was
ample evidence that Lagasse injured Poulin in retaliation for
his past cooperation. This conduct falls squarely within the
obstruction of justice guideline. See Cotts, 14 F.3d at 308
(holding that the guideline's reference to 1513 allows an
obstruction enhancement even where the motive was only to
"punish a snitch").
We find no error in the court's enhancement of
Lagasse's sentence for obstruction of justice.
D. Denial of Adjustment for Acceptance of Responsibility
Lagasse contends that he was entitled to a downward
adjustment for acceptance of responsibility because he
pleaded guilty within months of his arrest and appeared
before a grand jury on the government's behalf. Although the
-14-
14
court refused to grant the adjustment, it did expressly take
into account Lagasse's guilty plea when fixing a sentence in
the middle of the applicable guideline range, despite the
government's recommendation for the maximum imprisonment
term.
A two-level reduction in the offense level is
warranted "[i]f the defendant clearly demonstrates acceptance
of responsibility for his offense." U.S.S.G. 3E1.1.
However, "[a] defendant who enters a guilty plea is not
entitled to an adjustment [for acceptance of responsibility]
as a matter of right." Id. comment. (n.3); see also United
States v. Royer, 895 F.2d 28, 29-30 (1st Cir. 1990)
(explaining that "a downward adjustment for acceptance of
responsibility is not automatically to be conferred upon
every accused who pleads guilty"). While pleading guilty
before trial and truthfully admitting the offense conduct
will constitute "significant evidence" of acceptance of
responsibility, "this evidence may be outweighed by conduct
of the defendant that is inconsistent." U.S.S.G. 3E1.1,
comment. (n.3).
Only in "extraordinary cases" will the adjustment
be appropriate where, as here, the defendant has received an
obstruction of justice enhancement pursuant to 3E1.1. Id.
comment. (n.4). Other than referring to his challenge to the
obstruction of justice enhancement, Lagasse does not indicate
-15-
15
how his case might be "extraordinary" enough to allow the
acceptance of responsibility adjustment. Because Lagasse's
case is "ordinary" in that the obstructive conduct "indicates
that the defendant has not accepted responsibility for his
criminal conduct," id., the denial of the adjustment was
proper. See United States v. Wheelwright, 918 F.2d 226, 229
(1st Cir. 1990).
The district court alternatively found that Lagasse
did not deserve the acceptance of responsibility adjustment
because he was involved in an attempt to smuggle drugs into
prison. At the sentencing hearing, an MDEA agent testified
that on March 25, 1995, he went to the Maine Correctional
Center to investigate an anonymous tip that Lagasse's
girlfriend, Grace Sheloske, would attempt to smuggle drugs
into the prison that day. When Sheloske arrived at the
prison, she told the agent that she was there to visit
Lagasse and eventually admitted that she was concealing a
small amount of crack. Sheloske refused to identify to whom
she intended to give the drugs, stating that she did not want
to "get him in trouble." A deputy United States Marshal
testified that, just before the sentencing hearing, he
interviewed Jeffrey Rumore -- an inmate who worked for the
prison laundry -- who told him that Lagasse had confided to
Rumore that Sheloske planned to smuggle crack into the prison
and pass it during contact visits in the visiting room.
-16-
16
Based on this testimony, the court found that it
was Rumore who tipped off the authorities of the smuggling
plan, that Lagasse must have told Rumore about the plan, and
thus Lagasse knew in advance that Sheloske was carrying drugs
for him and indeed, that she did so at his behest. On
appeal, Lagasse argues that the court should not hold against
him "the one single occasion where an admitted drug addict
tried to feed his habit," combined with the Poulin assault,
to deny him any credit for acceptance of responsibility. We
must disagree.
"[I]t is primarily up to the district court to
decide whether or not the appellant accepted responsibility
for his conduct `with candor and authentic remorse.'"
Wheelwright, 918 F.2d at 229 (quoting Royer, 895 F.2d at 30).
We have held that, while a court may not require a defendant
to accept responsibility for conduct beyond the offense of
conviction, it may consider a defendant's post-offense
conduct -- including illegal drug activity -- as evidence of
the sincerity of his claimed remorse for the convicted
offense. United States v. O'Neil, 936 F.2d 599, 599-601 (1st
Cir. 1991) (upholding sentencing court's consideration of
post-offense use of marijuana in determining applicability of
adjustment for mail theft offense); accord United States v.
Byrd, 76 F.3d 194, 196-97 (8th Cir. 1996) (listing cases).
While such conduct does not compel the denial of credit for
-17-
17
acceptance of responsibility, O'Neil, 936 F.2d at 600, the
court could reasonably conclude here that Lagasse's
involvement in the attempted smuggling of drugs into the
prison was inconsistent with his claimed remorse, thus
negating the applicability of the adjustment. See United
States v. Olvera, 954 F.2d 788, 793 (2d Cir.) (sentencing
court permissibly found that the smuggling of marijuana into
prison "was inconsistent with acceptance of responsibility"),
cert. denied, 505 U.S. 1211 (1992).8
In sum, we find no error in the court's refusal to
grant Lagasse the benefit of an adjustment for acceptance of
responsibility.
8. We note that the guideline commentary lists the following
considerations in favor of the acceptance of responsibility
adjustment that, here, weigh against Lagasse: voluntary
termination or withdrawal from criminal conduct or
associations, and post-offense rehabilitative efforts
including drug treatment. U.S.S.G. 3E1.1, comment. (n.1(b)
& (g)).
-18-
18
III.
III.
Conclusion
Conclusion
We affirm the district court's sentence enhancement
for obstruction of justice and its denial of credit for
acceptance of responsibility. Because of the legal error in
the application of the weapon enhancement, we vacate the
sentence and remand for resentencing consistent with this
opinion.
-19-
19