United States v. Barnes

United States Court of Appeals
For the First Circuit

No. 00-1203

UNITED STATES OF AMERICA,

Appellee,

v.

REYNALDO BARNES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

Paul F. Markham for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, and Heidi E.
Brieger, Assistant United States Attorney, were on brief, for
appellee.

March 29, 2001
 SELYA, Circuit Judge. A jury convicted defendant-

appellant Reynaldo Barnes on one count of conspiracy to import

cocaine, 21 U.S.C. § 963, and two counts of unlawful use of a

communication facility in connection with drug-trafficking

activities, id. § 843(b). The district court sentenced him to

serve 115 months in prison.1 The appellant challenges his

conviction, arguing that the government presented insufficient

evidence of his guilt. He also challenges his sentence,

principally by invoking the Supreme Court's recent decision in

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). We affirm the

conviction. We direct a slight modification in the sentence

and, as modified, affirm it as well.

I

We present the facts in the light most hospitable to

the government's theory of the case, consistent with record

support. United States v. Alicea, 205 F.3d 480, 482 (1st Cir.),

cert. denied, 121 S. Ct. 256 (2000).

In this instance, the jury supportably could have found

that the appellant, in an effort to expand his ongoing trade in

illegal narcotics, told one of his quondam customers that his

1To be precise, the court imposed a sentence of 115 months
from the date of the judgment (in lieu of a 168-month sentence
from the date of the appellant's initial incarceration), to be
served concurrently with the undischarged portion of a sentence
that the appellant already was serving.

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sister, Marla Barnes, could provide the sizable quantities of

cocaine that the customer professed to require. The customer,

in reality an undercover agent employed by the federal Drug

Enforcement Administration (DEA), accepted the invitation. He

thereafter met with the Barnes siblings, and Marla Barnes made

preliminary arrangements (or so she said) for a large purchase

of cocaine through her connections in Panama.

As an initial step in the process, Marla Barnes sold

a one kilogram sample of cocaine to the undercover agent. The

agent paid the appellant what amounted to a finder's fee ($500).

For a variety of reasons, the larger deal never materialized.

The Barnes siblings nonetheless were arrested, indicted, tried,

and found guilty.2

The appellant's insufficiency challenge posits that he

did no more than introduce the undercover agent to his sister.

What happened thereafter, he asseverates, was not his doing. We

turn to this asseveration.

When a defendant contests the sufficiency of the

evidence presented at trial, we must take that evidence in the

light most favorable to the government "and decide whether that

2The appellant and his sister were tried together, and we
consolidated their appeals for oral argument. Because the
appeals raise significantly different issues, however, we have
opted to decide them by means of two separate opinions. This is
the first of those opinions.

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evidence, including all plausible inferences extractable

therefrom, enables a rational factfinder to conclude beyond a

reasonable doubt that the defendant committed the charged

crime." United States v. Noah, 130 F.3d 490, 494 (1st Cir.

1997). In forming its conclusion, a reviewing court "need not

believe that no verdict other than a guilty verdict could

sensibly be reached, but must only satisfy itself that the

guilty verdict finds support in 'a plausible rendition of the

record.'" United States v. Echeverri, 982 F.2d 675, 677 (1st

Cir. 1993) (quoting United States v. Ortiz, 966 F.2d 707, 711

(1st Cir. 1992)).

We start with the principal charge: conspiracy to

import cocaine. To convict a defendant of conspiracy, the

prosecution must "show beyond a reasonable doubt that a

conspiracy existed and that a particular defendant agreed to

participate in it, intending to commit the underlying

substantive offense . . . ." United States v. Sepulveda, 15

F.3d 1161, 1173 (1st Cir. 1993). Proof of the requisite

agreement requires no particular formalities: "the agreement

may be express or tacit and may be proved by direct or

circumstantial evidence." Id. Moreover, "[d]ue to the

clandestine nature of criminal conspiracies, the law recognizes

that . . . a common purpose and plan may be inferred from a

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development and collocation of circumstances." United States v.

Escobar-de Jesús, 187 F.3d 148, 175 (1st Cir. 1999) (quoting

United States v. Tejeda, 974 F.2d 210, 212 (1st Cir. 1992))

(omission in original), cert. denied, 52 U.S. 1176 (2000).

In this case, perscrutation of the record persuades us,

without serious question, that the government provided ample

evidence that the appellant intended to enter into an agreement

to import cocaine and knowingly assumed conspiratorial

responsibility. The jury, taking the proof favorably to the

government, rationally could have found that while the appellant

was actively engaged in selling narcotics to the undercover DEA

agent, he suggested that he could help his buyer to obtain

larger quantities of cocaine through a family contact; and that,

when the agent asked him to arrange a meeting to advance this

prospect, the appellant not only complied but also attended the

tête-à-tête and took an active part in the discussion of how

drugs could be smuggled into the United States from Panama. The

jury also rationally could have found that, as a direct result

of this confabulation, the appellant's sister laid the

groundwork for a substantial drug purchase in Panama, with a

view toward importing the contraband into the United States.

Perhaps most damning, the prosecution offered credible evidence

that, after the bargain had been struck, the protagonists

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executed a one kilogram "sample" sale, following which the

appellant accepted a $500 cash payment for bringing the

protagonists together.

To be sure, the appellant attempts to minimize his role

by claiming that he merely arranged a meeting as an

accommodation — nothing more — and that the payment was a mere

gratuity. Here, however, reasonable jurors surely could have

rejected the appellant's spin on what had transpired and

concluded — as these jurors apparently did — that the appellant

was part and parcel of the conspiracy. In examining evidence

and drawing inferences from it, "criminal juries are not

expected to ignore what is perfectly obvious." Echeverri, 982

F.2d at 679.

Nor is it any defense that the appellant was not a

prime mover in the conspiracy. After all, a conspiracy is a

continuum. Once a participant knowingly helps to initiate the

agreement and set it in motion, he assumes conspirator's

responsibility for the foreseeable actions of his confederates

within the scope of the conspiratorial agreement,3 whether or not

he is aware of precisely what steps they plan to take to

3
There is an exception, of course, for cases of abandonment,
see United States v. Munoz, 36 F.3d 1229, 1234 (1st Cir. 1994);
United States v. Juodakis, 834 F.2d 1099, 1102-03 (1st Cir.
1987)(per curiam), but the appellant did not raise an
abandonment defense in this case.

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accomplish the agreed goals. E.g., United States v. Rivera-

Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989). On this basis,

the government presented more than enough evidence to ground the

appellant's conviction on the conspiracy count.

The remaining two counts of the indictment charge

unlawful use of a communications facility in connection with

drug-trafficking activities. Apart from his assault on the

sufficiency of the evidence vis-à-vis his conspiracy conviction,

the appellant makes no independent attempt to argue against the

sufficiency of the evidence presented on these charges. Any

such argument is, therefore, foreclosed. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that

arguments not developed on appeal are deemed abandoned). We

add, moreover, that the record does not lend the slightest

support to such a challenge; the proof seems unassailable that

critical aspects of the conspiracy were facilitated by

telephonic means.

For these reasons, we uphold the finding of guilt as

to each and all of the counts of conviction.

II

The appellant's misgivings about his sentence have more

bite. The lower court imposed an incarcerative term variously

characterized as 115 or 168 months, see supra note 1, together

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with a five-year term of supervised release. Adopting arguments

made by Marla Barnes, the appellant attacks this sentence on

three grounds.

A.

The appellant contends that the district court clearly

erred in its drug-quantity finding.4 We do not linger over this

contention. Generally, when a narcotics transaction is

unconsummated, the sentencing court may base its drug-quantity

finding on the negotiated amount of contraband.5 See USSG

§2D1.1, cmt. (n.12). The court may, however, use a lower figure

if the defendant proves that he "did not intend to provide, or

was not reasonably capable of providing, the agreed-upon

quantity of the controlled substance." Id. The defendant has

4
The significance of this finding relates to the calculation
of the appellant's guideline sentencing range. The quantity of
drugs involved in the offense is a key integer used in
determining an offender's base offense level. See USSG
§2D1.1(a)(3). In turn, the offense level, as adjusted,
interlocks with the offender's criminal history category to
determine the applicable guideline sentencing range.
See generally id. §1B1.1 (explaining this procedure).
5
When a defendant is charged with both a completed
substantive offense and an attempt, the consummated transaction
may, in some circumstances, more accurately reflect the scope of
the offense. In that event, the sentencing court may in its
discretion focus upon the amount of drugs involved in the
consummated transaction rather than the negotiated quantity.
USSG §2D1.1, cmt. (n.12). Here, however, the sale of a sample
clearly does not provide an objective measure of the scope of
the frustrated transaction.

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the burden of persuading the court that he lacked intent or

capacity.6 See id. We apply these principles here.

For sentencing purposes, the district court attributed

twenty to fifty kilograms of cocaine to the appellant. The

appellant asserts that this figure lacked any evidentiary

foundation. But the jury supportably found the appellant to be

complicit in the charged conspiracy, and the uncontradicted

evidence was that the conspirators aspired to import 110

kilograms of cocaine into the United States. The appellant

failed to offer any evidence that the conspirators did not

intend, or were unable to procure and arrange for, the

importation of this amount of contraband. Thus, the only

credible argument against holding the appellant responsible for

twenty to fifty kilograms of cocaine is that the quantity should

have been considerably higher. Any error was, therefore,

harmless. See United States v. Hernández, 218 F.3d 58, 71 (1st

Cir. 2000) (finding determination of drug quantity harmless,

even if erroneous, since it did not affect the defendant's

6
This is a change from prior law. E.g., United States v.
Tillman, 8 F.3d 17, 19 (11th Cir. 1993) (per curiam) (assigning
burden of proof on this issue to the government). The
Sentencing Commission reallocated the devoir of persuasion well
before the events at issue here. See USSG §2D1.1, cmt. (n.12)
(Nov. 1995).

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sentence); United States v. Ortiz, 23 F.3d 21, 28 (1st Cir.

1994) (similar).

B.

In Apprendi, 120 S. Ct. at 2362-63, the Supreme Court

held that, "[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." The appellant urges that the

term of immurement imposed upon him offended this rule. Because

the appellant did not raise this issue below, we review his

claim of an Apprendi violation for plain error. See United

States v. Robinson, ___ F.3d ___, ___ (1st Cir. 2001) [No. 00-

1674, slip op. at 6]. We discern none.

The narcotics laws establish different maximum

sentences depending, inter alia, on the type and quantity of

drugs involved in any particular offense. With respect to the

importation of cocaine, the applicable penalty provisions are

found in 21 U.S.C. § 960(b). Section 960(b)(3) establishes the

default statutory maximum: a sentence no greater than twenty

years for importing, or conspiring to import, any substance

containing less than 500 grams of cocaine. Because the

appellant's sentence — whether viewed as 115 months or 168

months, see supra note 1 — falls below the default statutory

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maximum, the Apprendi rule is inapposite to the imposition of

the appellant's prison term. As we have said, "[n]o Apprendi

violation occurs when the district court sentences a defendant

below the default statutory maximum, even though drug quantity,

determined by the court under a preponderance-of-the-evidence

standard, influences the length of the sentence imposed."

Robinson, ___ F.3d at ___ [slip op. at 7].

C.

The appellant's final plaint has more force. In

addition to a prison term, the court also meted out a five-year

supervised release term. However, section 960(b)(3) — in

contrast to the five-year term mentioned in section 960(b)(1) —

provides for a supervised release term of three years. 21

U.S.C. § 960(b)(3). Given this court's previous holding that

supervised release terms set out in particular sections of the

drug laws establish the maximum terms for violations of those

sections, see Suveges v. United States, 7 F.3d 6, 10 (1st Cir.

1993) (construing 21 U.S.C. § 841(b)), we think that Apprendi

requires that this aspect of the appellant's sentence be reduced

to three years.7 This reduction can, of course, be accomplished

7
We recognize that there is a split of authority in regard
to whether terms of supervised release specified in 21 U.S.C. §
841 can or cannot exceed those authorized by 18 U.S.C. §
3583(b). Compare, e.g., United States v. Good, 25 F.3d 218, 221
(4th Cir. 1994) (holding that such terms are maximum terms),

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without either disturbing the remainder of the sentence or

reconvening the disposition hearing. See Fed. R. Crim. P.

43(c)(4); cf. United States v. Jackson, 923 F.2d 1494, 1496-97

(11th Cir. 1991) (holding that remand for correction of an

illegal sentence does not require the defendant's presence if

the correction palliates the sentence).

III

We need go no further. The short of it is that the

evidence in the case, read in the required light, fully supports

the jury's verdict. The sentence itself is proper, except for

one particular. To repair that defect, we instruct the lower

court, on remand, to truncate the supervised release term to

three years. In

all other respects, the conviction and sentence are affirmed.

It is so ordered.

with, e.g., United States v. Page, 131 F.3d 1173, 1177-80 (6th
Cir. 1997) (contra). We consider ourselves bound by Suveges
and, thus, do not probe the point further.

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