United States Court of Appeals
For the First Circuit
No. 00-1493
UNITED STATES OF AMERICA,
Appellee,
v.
OSCAR CABA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Brian M. Glover, by appointment of the court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom
Margaret E. Curran, United States Attorney, and Kenneth P. Madden,
Assistant United States Attorney, were on brief, for appellee.
March 2, 2001
SELYA, Circuit Judge. On May 26, 1999, a federal grand jury
sitting in the District of Rhode Island returned a six-count
superseding indictment against defendant-appellant Oscar Caba and a
codefendant, Manolo Vargas. Counts 1 and 2 charged the men with
conspiring together and with others to distribute, and to possess with
intent to distribute, heroin and cocaine in violation of 21 U.S.C. §
846. Count 3 charged the men with having distributed, on a date
certain, 9.6 grams of heroin in violation of 21 U.S.C. § 841(a)(1) &
(b)(1)(C). The last three counts pertained to activities allegedly
occurring on a single day (March 26, 1999): possessing 25.8 grams of
heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1)
& (b)(1)(C) (count 4); possessing 934 grams of cocaine (in powder form)
with intent to distribute in violation of 21 U.S.C. § 841(a)(1) &
(b)(1)(B) (count 5); and possessing 143.7 grams of cocaine base (crack
cocaine) with intent to distribute in violation of 21 U.S.C. §
841(a)(1) & (b)(1)(A) (count 6). The government timely filed an
information memorializing the appellant's prior felony drug conviction,
thereby putting him on notice of its intention to seek a sentencing
enhancement. See 21 U.S.C. § 841(b)(1)(C) (increasing statutory
maximum from twenty to thirty years for a violation involving an
unspecified amount of a Schedule I or II controlled substance if the
offender has a prior felony drug conviction).
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Vargas entered a guilty plea and the appellant stood trial
alone. Following a six-day joust, a jury convicted him on the first
five counts but acquitted him on count 6 (the crack cocaine count). At
sentencing, the district court made several findings relevant to the
appellant's guideline sentencing range. In the end, the court set the
range at 235-293 months (offense level 36; criminal history category
III) and imposed an incarcerative sentence at the very top of the
range, to be followed by an eight-year supervised release term. This
appeal ensued.
In this venue, the appellant presses a series of sentence-
related claims. As we explain below, none has merit.
We start, as does the appellant, with the district court's
inclusion of the 143.7 grams of crack cocaine in computing his
guideline sentencing range. See generally USSG §2D1.1, comment. (n.12)
("Types and quantities of drugs not specified in the count of
conviction may be considered in determining the offense level."). The
appellant vigorously attacks this finding. His principal claim draws
its essence from the Supreme Court's decision in Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000). There, the Court held that, in a
criminal case, "[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt." Id. at 2362-63. The appellant seeks to extend this rule by
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arguing that it was error for the court to increase his sentence based
on its finding that the government had shown by a preponderance of the
evidence that the appellant possessed the crack cocaine as part of the
conspiracy.
This argument runs along the following lines. Under
Apprendi's rationale, the appellant says, the issue of drug quantity
was one for the jury — not the court — to resolve, and, in all events,
the decision should have been guided by the beyond-a-reasonable-doubt
standard (rather than by the less demanding "preponderance" standard).
This argument has an unusual twist. The appellant concedes,
as he must, that the court's inclusion of the 143.7 grams of crack
cocaine in the guideline calculations had no effect on the applicable
statutory maximum.1 Rather, the appellant argues that the drug quantity
finding influenced his guideline sentencing range (and, hence, his
sentence) in a meaningful way and asserts that the Apprendi principle
should be extended to require submission to the jury of any factor that
significantly impacts a defendant's sentence. It is enough, the
appellant suggests, that a finding has a "dramatic effect" on the
sentence that a defendant receives.
1
The appellant received a 293-month sentence. The lowest
statutory maximum that applies to narcotics distribution cases
like this one, in which the government filed a sentencing
enhancement information based on a prior felony drug conviction,
is thirty years. 21 U.S.C. § 841(b)(1)(C). The sentence
imposed, therefore, was well within the statutory maximum.
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We reject this expansive reading of Apprendi. By its own
terms, the holding in Apprendi applies only when the disputed "fact"
enlarges the applicable statutory maximum and the defendant's sentence
exceeds the original maximum. Id. For this reason, Apprendi simply
does not apply to guideline findings (including, inter alia, drug
weight calculations) that increase the defendant's sentence, but do not
elevate the sentence to a point beyond the lowest applicable statutory
maximum. United States v. Lafreniere, 236 F.3d 41, 50 (1st Cir. 2001);
United States v. Baltas, 236 F.3d 27, 41 (1st Cir. 2001); United States
v. Keith, 230 F.3d 784, 787 (5th Cir. 2000) (per curiam), cert. denied,
___ S. Ct. ___ (2001) [2001 WL 70558]; United States v. Hernandez-
Guardado, 228 F.3d 1017, 1027 (9th Cir. 2000); United States v. Aguayo-
Delgado, 220 F.3d 926, 933 (8th Cir.), cert. denied, 121 S. Ct. 600
(2000). In other words, even after Apprendi, the existence vel non of
sentencing factors that boost a defendant's sentence but do not trip a
new statutory maximum remain grist for the district judge's mill under
a preponderance-of-the-evidence standard.
In much the same vein, the appellant asserts that, in light
of Apprendi, the issue of his role in the offense — specifically, the
issue of whether he was an organizer or leader under USSG §3B1.1(c) —
should have been resolved by the jury under the beyond-a-reasonable-
doubt standard instead of by the district court under the
preponderance-of-the-evidence standard. Once again, the challenged
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finding raised the appellant's offense level (and, hence, his ultimate
sentence) but did not elevate the applicable statutory maximum.
Consequently, for the reasons previously discussed, this claim too must
be rejected.
The appellant's next asseveration rests squarely upon the
fact that the jury acquitted him on count 6 (the crack cocaine count).
Contrary to his importunings, however, this fact does not change the
decisional calculus concerning the sentencing court's inclusion of the
crack cocaine as relevant conduct under USSG §1B1.3(a)(2). The Supreme
Court has held that a district court, without offending due process,
may consider at sentencing, and act upon, acquitted conduct. United
States v. Watts, 519 U.S. 148, 157 (1997) (per curiam). Moreover, the
government need prove such conduct only by a preponderance of the
evidence. United States v. Amirault, 224 F.3d 9, 15 (1st Cir. 2000)
(collecting cases). Because the Supreme Court's holding in Apprendi
does not call into question the validity of this line of cases, the
appellant's reliance on the acquittal is misplaced.
Finally, the appellant maintains that the drug quantity and
role-in-the-offense findings, even if within the court's purview, are
unsupported in the record. We do not agree.
As to drug quantity, the appellant's argument again centers
on the inclusion of the crack cocaine in the court's computations.
That finding hinges on the court's binary determination that the
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appellant dealt in crack cocaine and that those dealings were "relevant
conduct," USSG §1B1.3, that is, part and parcel of the overall drug-
trafficking activities comprehended by the counts of conviction. It is
settled beyond peradventure that a sentencing court's findings of fact
in respect to relevant conduct will not be set aside unless they are
clearly erroneous. United States v. Tejada-Beltran, 50 F.3d 105, 109
(1st Cir. 1995).
Here, the district court thought it "very clear" that the
appellant was inextricably linked to the 143.7 grams of crack cocaine
found in Vargas's bedroom (and, accordingly, that the crack cocaine was
tied to the appellant's drug-trafficking activities). While the proof
on that point was conflicting — Vargas, for example, made inconsistent
statements — there was ample evidence in the record to support the
finding. The crack cocaine was discovered at a "stash house" for the
appellant's operation (along with large quantities of heroin and
powdered cocaine that the appellant was convicted of possessing). The
appellant was seen at that location on numerous occasions, he had
extensive telephone contact with persons there, and his fingerprints
adorned a number of incriminating items seized from the locus. Indeed,
like peas in a pod, the bag containing the 143.7 grams of crack cocaine
and several bags containing powdered cocaine were in a single package,
hidden in a television console — and the appellant’s fingerprint was
found on one of the bags of powdered cocaine. Given the district
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court's detailed findings and the facts of record, we cannot say that
the court clearly erred in deciding that the crack cocaine was properly
attributable to the appellant for sentencing purposes. See United
States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) ("[W]here there is
more than one plausible view of the circumstances, the sentencing
court's choice among supportable alternatives cannot be clearly
erroneous.").
The appellant's remaining claim is that the district court
erred in concluding that he was an organizer or leader under USSG
§3B1.1(c). We review such findings for clear error. United States v.
Graciani, 61 F.3d 70, 74 (1st Cir. 1995). We discern none here.
The two-level upward adjustment for a defendant's role in the
offense applies "[i]f the defendant was an organizer, leader, manager,
or supervisor in any criminal activity." USSG §3B1.1(c). A defendant
occupies this status if he "'exercised control over, or was otherwise
responsible for organizing the activities of, at least one other
individual in committing the crime.'" United States v. Medina, 167
F.3d 77, 80 (1st Cir. 1999) (quoting United States v. DiSanto, 86 F.3d
1238, 1259 (1st Cir. 1996)). A defendant's role in the offense "can be
proved wholly by circumstantial evidence." United States v. Cruz, 120
F.3d 1, 4 (1st Cir. 1997) (en banc).
In this case, the district court concluded that the appellant
was an organizer or leader after finding that Vargas was his subaltern.
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This finding was based, inter alia, on evidence that Vargas told an
undercover agent that he worked for the appellant and referred to the
appellant as "the big." These statements,2 coupled with evidence
suggesting that the appellant gave Vargas directions in regard to the
consummated heroin transaction (described in count 3 of the indictment)
and that the appellant devised the plan for the parties' anticipated
future drug transactions, sufficed to ground the role-in-the-offense
enhancement. Cf. United States v. Akitoye, 923 F.2d 221, 227 (1st Cir.
1991) (affirming two-level enhancement for supervisory role where
evidence supported an inference that the defendant controlled the drugs
and gave orders to a subordinate).
We need go no further. The appellant struggles mightily, but
he is unable to cast a shadow of a doubt on the lawfulness of his
sentence.
Affirmed.
2
To be sure, Vargas tried to explain these statements away
at trial, saying that he worked for the appellant in a
legitimate business. The district court, however, was at
liberty to take Vargas's words as descriptive of the drug-
trafficking hierarchy. See Ruiz, 905 F.2d at 508.
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