United States Court of Appeals
For the First Circuit
No. 02-1754
UNITED STATES OF AMERICA,
Appellee,
v.
NORMA NIEVES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Tina Schneider, for appellant.
David Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.
March 6, 2003
TORRUELLA, Circuit Judge. On March 26, 2002, Norma
Nieves ("Nieves") pled guilty to an indictment charging that she
conspired to distribute crack cocaine ("crack") from September 13,
1999 to December 10, 1999, in violation of 21 U.S.C. § 846 (2000),
and distributed crack and cocaine hydrochloride, in violation of 21
U.S.C. § 841. On June 7, 2002, the district court sentenced her to
60 months imprisonment, a supervised release term of four years on
the conspiracy count and three years on the distribution counts,
and a $500 special assessment.
Nieves challenges her sentence, arguing that the district
court erred in holding her responsible for a drug sale as to which
she had consistently disputed her involvement and erred in giving
her a term of supervised release in excess of the default statutory
maximum. For the following reasons, we affirm.
I. Attack on Term of Imprisonment
Because Nieves pled guilty to an indictment that did not
contain a specific drug quantity, the district court determined
whether Nieves was accountable for 1.63 grams of crack sold on
December 7, 1999 by Alex Nieves ("Alex"), Nieves's son and co-
conspirator, to a cooperating witness ("CW").
A. Arguments Before the District Court
The government contended that the facts supported holding
Nieves accountable under an aiding and abetting theory, U.S.
Sentencing Guidelines Manual ("U.S.S.G." or "Sentencing
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Guidelines") § 1B1.3(a)(1)(A) (2002), or under a theory of jointly
undertaken criminal conduct, U.S.S.G. § 1B1.3(a)(1)(B). According
to the presentence report, on December 7, 1999, Alex delivered
crack to the CW at the CW's home and said that he would return with
more. When Alex failed to return, the CW called Nieves's
residence. The CW inquired as to Alex's whereabouts, and Nieves
asked if Alex had just delivered crack to the CW. The CW responded
that Alex had, but he was supposed to deliver more. Nieves then
agreed to call the CW if she heard from Alex. A short time later,
Alex called the CW and said that he was on his way; he then
delivered additional crack to the CW.
In her objection to the presentence report, Nieves argued
that she could not be held accountable for the December 7 sale
because she withdrew from the drug conspiracy in October of 1999,
when she told the CW that due to her pregnancy she had stopped
using drugs and would no longer help the CW acquire drugs. In
response, the CW congratulated her on her decision and wished her
luck with her pregnancy. Nieves did not have further contact with
the CW until December 7, 1999, when the CW called Nieves's
residence looking for Alex. Nieves contended that nothing in the
phone call indicated that Nieves either spoke with Alex before he
completed the cocaine sale or knew that Alex supplied the CW with
drugs until after the sale was completed.
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After considering the parties' arguments, the district
court held Nieves accountable for the 1.63 grams of crack, finding
"that she was a part of [the December 7, 1999] transaction, aided
and abetted its completion, and cooperated with the further contact
between the supplier and her son."
By including the December 7 sale, the total amount of
cocaine base attributable to Nieves rose above five grams and
subjected her to a mandatory minimum five-year sentence of
imprisonment. Nieves challenges the district court's attribution
of the December 7 sale to her.
B. Standard of Review
At sentencing, the government must prove drug quantity by
a preponderance of the evidence. United States v. Eke, 117 F.3d
19, 22 (1st Cir. 1997). Nieves's attack on the sentencing court's
inclusion of the December 7 sale is an attack on the court's
findings of fact, which we review for clear error, United States v.
Caba, 241 F.3d 98, 102 (1st Cir. 2001), and an attack on its
application of law, which we review under a sliding-scale standard,
United States v. Howard (In re Extradition of Howard), 996 F.2d
1320, 1328 (1st Cir. 1993). "The standard of review applicable to
mixed questions usually depends upon where they fall along the
degree-of-deference continuum: the more fact-dominated the
question, the more likely it is that the trier's resolution of it
will be accepted unless shown to be clearly erroneous." Id.
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C. Relevant Conduct
Nieves argues that the government did not present
sufficient evidence for the district court to hold her responsible
for the December 7 sale under either an aiding and abetting theory
or under a theory of jointly undertaken criminal conduct. We
disagree. The sentencing guidelines instruct the district court to
hold the defendant responsible both for acts she personally
committed and for acts attributable to her as relevant conduct.
See U.S.S.G. § 1B1.3.
The district court did not err in finding by a
preponderance of the evidence that Nieves aided and abetted the
final drug sale. See U.S.S.G. § 1B1.3(a)(1)(A) (stating that the
court shall determine the sentencing range on the basis of "all
acts and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant"). The
telephone call in which Nieves agreed to tell Alex to call the CW
-- while aware that the CW wanted to purchase drugs -- established
Nieves's knowledge of the sale and constituted sufficient evidence
to support a finding of aiding and abetting. United States v.
Taylor, 54 F.3d 967, 975 (1st Cir. 1995) (stating that the crucial
element of aiding and abetting is a showing -- "that may be made
wholly on the basis of circumstantial evidence" -- "that the
defendant consciously shared the principal's knowledge of the
underlying criminal act, and intended to help the principal").
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Similarly, the district court did not err in finding by
a preponderance of the evidence that Nieves was responsible for the
December transaction under a conspiracy theory. U.S.S.G. § 1B1.3
(a)(1)(B) (stating that "in the case of jointly undertaken criminal
activity," the defendant's guideline range is determined by "all
reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity"). Nieves admitted to
having arranged prior drug purchases for the CW and to having had
a drug-trafficking relationship with Alex. This evidence coupled
with the telephone call between Nieves and the CW constituted
sufficient evidence for finding that the December 7 transaction was
"a reasonably foreseeable act[] . . . of others in furtherance of
the jointly undertaken criminal activity." Id.
Nieves argues that she cannot be held responsible under
U.S.S.G. § 1B1.3(a)(1)(B) because she had successfully withdrawn
from the conspiracy prior to the December 7 sale. To withdraw from
an ongoing conspiracy, Nieves must do more than merely cease
selling drugs. United States v. Piper, 298 F.3d 47, 53 (1st Cir.
2002). "In order to withdraw, a conspirator must act affirmatively
either to defeat or disavow the purposes of the conspiracy."
United States v. Dunn, 758 F.2d 30, 37 (1st Cir. 1985) (quoting
United States v. Phillips, 664 F.2d 971, 1018 (5th Cir. 1981)).
"Typically, there must be evidence of a full confession to
authorities or a communication by the accused to his co-
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conspirators that he has abandoned the enterprise and its goals."
United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) (per
curiam).
Nieves contends that she withdrew from the conspiracy
when she told the CW that due to her pregnancy she would no longer
take or sell drugs. Even assuming that the district court believed
Nieves's rendition of her conversation with the CW, the sentencing
court did not err in finding that by later agreeing to help the CW
contact Alex in order to procure drugs, Nieves had not truly
"disavow[ed] the purposes of the conspiracy." United States v.
Piva, 870 F.2d 753, 757 (1st Cir. 1989). Consequently, we find
that the district court did not err in holding Nieves accountable
for the 1.63 grams of crack in dispute.
II. Supervised Release Challenge
Nieves's final argument is that the sentencing court
committed Apprendi error by sentencing her to a period of
supervised release beyond the statutory maximum.1 The conspiracy
count was a Class C offense, for which 18 U.S.C. § 3583(b)
authorizes only a three-year term of supervised release.
1
To the extent that Nieves attempts to make out a claim based on
U.S.S.G. § 5D1.2, see United States v. Nelson-Rodríguez, No. 00-
1422, slip op. at 73-74 (1st Cir. Feb. 7, 2003), that claim has
been procedurally defaulted by her failure to advert to it in her
opening brief. United States v. Brennan, 994 F.2d 918, 922 n.7
(1st Cir. 1993) (stating that "it is well settled that a legal
argument made for the first time in an appellant's reply brief
comes too late and need not be addressed" (citation omitted)).
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Therefore, she argues, the court erred in sentencing her to four
years of supervised release. As Nieves acknowledges, her
supervised release claim is reviewable only for plain error because
she failed to make her Apprendi claim below. United States v.
Allen, 312 F.3d 512, 514 (1st Cir. 2002).
According to Apprendi v. New Jersey, 530 U.S. 466, 476
(2000), it is a constitutional requirement "that any fact (other
than prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt." Nieves claims that the district
court erred because the body of the indictment did not specify any
amount of drugs, yet the court sentenced her to a term of
supervised release in excess of the maximum sentence allowable
under 21 U.S.C. § 841(b) and 18 U.S.C. § 3583(b).
Although Nieves phrases her claim in terms of Apprendi,
the claim ultimately boils down to a question of statutory
construction, a question our recent decisions have answered
adversely to Nieves. In United States v. López, 299 F.3d 84 (1st
Cir. 2002), we determined that the "at least" language in 21 U.S.C.
§ 841(b)(1)(B) "establishes a mandatory minimum term of supervised
release, but no maximum." López, 299 F.3d at 89-90. Then in
United States v. Cortés-Claudio, 312 F.3d 17, 18-19 (1st Cir.
2002), we held that 18 U.S.C. § 3583(b) "does not limit the length
of supervised release terms in cases under § 841." Consequently,
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the maximum term of supervised release that the sentencing court
could have imposed ranged from the mandatory minimum set forth in
§ 841(b) up to life. Nieves is therefore left without a viable
claim because "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.
Caba, 241 F.3d 98, 101 (1st Cir. 2001).
III. Conclusion
For the reasons stated above, we affirm.
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