United States v. Picanso

United States Court of Appeals
For the First Circuit

No. 02-1551
No. 02-2013

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

JOSÉ PICANSO, aka JOE,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, Senior U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Timothy G. Watkins, Federal Defender Office, for defendant.
Michael J. Pelgro, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for the
United States.

June 19, 2003
 BOUDIN, Chief Judge. José Picanso was convicted of four

counts of distributing cocaine, one count of conspiracy to

distribute, and two counts of aiding and abetting distribution.

See 21 U.S.C. §§ 841, 846 (2000). He now appeals his sentence,

objecting to his designation as an organizer or leader. U.S.S.G.

§ 3B1.1(a) (2002). The government cross-appeals to contest the

trial court's attribution to Picanso of a drug quantity less than

that urged by the government. Both claims of error are plausible

but, by a close margin, we uphold the sentence against both

attacks.

Picanso was indicted with seven co-defendants on

trafficking charges in late 1999. Trial began on July 17, 2000,

and in view of the then-recent decision in Apprendi v. New Jersey,

530 U.S. 466 (2000), the district court approved the government's

request to ask the jury to determine drug quantity. On July 26,

Picanso was convicted on the above-mentioned counts. By special

verdict, the jury found Picanso responsible for at least 500 grams

but less than 5 kilograms of cocaine, making him liable under the

statute to a minimum sentence of 5 years and a maximum sentence of

40 years. 21 U.S.C. § 841(b)(1)(B).

At the sentencing hearing, the government recommended

that the court find Picanso responsible for 5 to 15 kilograms of

cocaine, equating under the guidelines to a base offense level

("BOL") of 32. U.S.S.G. § 2D1.1(c)(4). It also sought a 4-level

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increase under section 3B1.1(a) which provides, "If the defendant

was an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive, increase [the

offense level] by 4 levels." Both positions were supported by the

probation officer's pre-sentence report ("PSR"). The resulting

total offense level ("TOL") of 36, coupled with Picanso's criminal

history (category II), would have translated into a guideline

sentencing range of 210-262 months. U.S.S.G. Ch. 5, Pt. A

(sentencing table).

Picanso opposed both the quantity and role-in-offense

adjustments sought by the government. As to the former, Picanso

said that he was responsible for less than 5 kilos and he pointed

to the jury's special verdict as implying its rejection of the

government's position. The district court first said, "You don't

have to argue the jury verdict with me, I'm bound by it." After

further discussion, described more fully below, the district court

retreated somewhat from this position but still found Picanso

responsible for between 500 grams and 2 kilos, resulting in a BOL

of 26. U.S.S.G. § 2D1.1(c)(7).

However, the district court agreed with the government

that the conspiracy involved five or more participants (a point now

undisputed) and that Picanso qualified as an organizer or leader,

warranting an upward adjustment of 4 levels. The result was a TOL

of 30 and guideline range of 108-135 months. U.S.S.G. Ch.5, Pt. A.

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The district court then sentenced Picanso to 122 months of

imprisonment. Picanso appealed to contest the factual basis for

the 4-level role enhancement, and the government countered by

cross-appealing from the district court's ruling that Picanso was

liable for only 500 grams to 2 kilos of cocaine.

Role Enhancement. We begin with Picanso's appeal. To

justify the role enhancement, the government carries the burden of

proving, by a preponderance of the evidence, that the defendant was

the "organizer or leader" of a criminal activity. United States v.

Cruz, 120 F.3d 1, 4 (1st Cir. 1997) (en banc), cert. denied, 522

U.S. 1064 (1998). The guideline commentary states in pertinent

part:

Factors the court should consider include the
exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.

U.S.S.G. § 3B1.1, comment., n.4.

The underlying drug conspiracy involved Picanso and a

number of other drug dealers operating out of two Portuguese-

American social clubs in the Back Central area of Lowell,

Massachusetts. Picanso's position is that he was one independent

drug dealer among many; he supplied many of the drug dealers that

sold to end users, but (he says) they were all free agents and he

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exercised no control over them. The government seems to concede

that Picanso was not a "leader" of a unified group of drug dealers,

but argues nonetheless that he pulled the "organizational strings"

by virtue of his control of the supply of cocaine. It relies among

other decisions on United States v. Tejada-Beltran, 50 F.3d 105

(1st Cir. 1995):

One may be classified as an organizer, though
perhaps not as a leader, if he coordinates
others so as to facilitate the commission of
criminal activity. The key to determining
whether a defendant qualifies as an organizer
is not direct control but relative
responsibility. . . . [T]he four level
enhancement applies whether or not [the
defendant] retains supervisory control over
the other participants.

Id. at 112 (internal citations omitted).

In substance, Picanso was a wholesaler. Evidently he

secured cocaine in bulk on trips to New York. According to the

PSR, Picanso "acquired kilograms of cocaine from his sources and

. . . broke down the kilograms into ounces and sold multiple ounces

on a regular basis." After he distributed the drugs to retail

dealers, they in turn would cut the cocaine and sell it to end

users. Consistent with this description, it is also undisputed

that Picanso was the "primary cocaine supplier" to these retail

dealers.

The greater quantities in which a wholesaler deals and

his larger profits cannot alone trigger the role enhancement,

United States v. Fuller, 897 F.2d 1217, 1221 (1st Cir. 1990), and

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the reason is plain. The base offense level already takes quantity

(and, implicitly, profit) into account, id. at 1222; and if

quantity alone were enough, every wholesaler in a significant

conspiracy with retailers would be characterized as an organizer or

leader. Here, the retail dealers were free to purchase from

others, and did so before, during, and after Picanso's arrival on

the scene. Nevertheless, under Tejada-Beltran, a wholesaler even

without full-scale control of his retailers could still

"coordinate[] others" so as to "facilitate" the criminal activity.

50 F.3d at 112.

The government points to several indicia to suggest a

measure of control and coordination by Picanso. Several seem to us

weak, at least in isolation. Yes, when other drug dealers called

Picanso for a delivery, he would name a time and place for the

transaction, but this de minimis planning is inherent in a criminal

transaction involving more than one party. Nor does it distinguish

Picanso from most sellers that as a formal matter he set the price

and terms for his own sales. And, though some dealers regard

Picanso as the "king," the guideline commentary provides that

"titles such as 'kingpin' or 'boss' are not controlling," U.S.S.G.

§ 3B1.1, comment., n.4, although the commentary does not say that

the perceptions of co-conspirators are automatically irrelevant.

More helpful to the government is the report by a

confidential witness (contained in the PSR) that Picanso boasted

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that he "would shut [a co-defendant] down for good if [the co-

defendant] messed up again." The ability to regulate participation

in the local drug trade is surely an indicium of power and control.

This statement was not introduced at trial, and Picanso questions

whether the sentencing judge actually relied on it, but sentencing

decisions can rest on facts contained in the PSR and obvious

evidence in the record supporting the district court's ultimate

finding is sufficient. Cruz, 120 F.3d at 2; see also United States

v. Medina, 167 F.3d 77, 80 (1st Cir. 1999) (no need for specific

findings if evidence obvious).

There was also some evidence that Picanso on at least one

occasion arranged for a transfer of drugs that involved Picanso as

supplier, one of his retailers, and an acquaintance of the

retailer. How far this showed Picanso to be orchestrating

downstream transactions is a matter of inference; but inference

drawing is part of fact-finding confided to the district court. To

the extent that Picanso was effectively supervising the

arrangements for a sale by the retailer for further distribution,

it becomes easier to describe him as an organizer of something more

than his own wholesaling. Cf. United States v. Brown, 298 F.3d

120, 123 (1st Cir.), cert. denied, 123 S. Ct. 710 (2002).

While the pillars may be individually weak, taken

together they provide somewhat stronger support for the district

court's ultimate finding. To summarize, Picanso supplied a

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substantial network of retailers, set the terms for his own

transactions with them, was regarded as the kingpin by other

conspirators, and–-drawing inferences in favor of the ultimate

finding–-had some influence over the operations of the retailers

themselves. Probably this could be said of many wholesalers but

not all.

There is no mathematical formula for drawing the line on

one side of which one can be called an organizer. Although there

must be a core of facts to support the label and not pure

intuition, the issue also turns in some measure on an overall

assessment of the defendant's role based on an assemblage of

detail. The district court, having presided over the trial and

heard the evidence first hand, said he had no doubt that Picanso

was the organizer. The trial judge has the advantage over us as to

both the raw facts and the "feel" of the situation. United States

v. Rivera, 994 F.2d 942, 952 (1st Cir. 1993). Our review is only

for clear error, United States v. Martinez-Medina, 279 F.3d 105,

123 (1st Cir.), cert. denied, 123 S. Ct. 311 (2002), and we do not

find it here.

Drug Quantity. The PSR attributed to Picanso a series of

specific small amounts of cocaine based on evidence as to his

identified direct sales to retailers, his personal possession of a

small amount on arrest, and other specific sales deemed to be

relevant conduct as to Picanso. See U.S.S.G. § 1B1.3(a). These

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added up to less than a kilo, but the probation officer in the PSR

recommended that Picanso be held responsible for between 5 and 15

kilos based crudely (there was no calculation) on the length of his

involvement and frequency of sales, and on a few recorded or

reported statements of Picanso. For example, Picanso said on one

occasion that he had just brought 5 kilos from New York.

In addition, at the sentencing hearing, the government

offered an affidavit of the case agent from the Drug Enforcement

Administration. Following a familiar technique, see United States

v. Robinson, 241 F.3d 115, 117 n.1 (1st Cir.), cert. denied, 534

U.S. 856 (2001), the affidavit converted the amount of money seized

from the home of Picanso's girlfriend ($639,000) into kilos of

cocaine, basing the calculation on prices that Picanso was charging

at the time of his sales and other such data. The affidavit

concluded that the cash represented the proceeds from between 44

and 82 kilos of cocaine. This assumes, plausibly but not

assuredly, that the money was Picanso's and that he had no other

source of income.1

Against this background, the government on appeal objects

to the district court's ruling attributing to Picanso only 500

grams to 2 kilos. Two arguments are offered: one is that the

1
The money was seized from a safe in his girlfriend's house
well after Picanso's arrest and, sensibly, he made no effort in the
forfeiture proceeding to claim the money as his. Probably it was–-
a document pertaining to Picanso was also in the safe–-but there
was no definitive proof of ownership or derivation.

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district court deemed itself bound or was overly influenced by the

jury's special verdict; the other is that–-whatever the jury

believed--the evidence compelled a finding by the district court

that for guideline purposes Picanso was responsible for 5 to 15

kilos. We address the arguments in this order.

As already recounted, the district court said, at the

outset of argument on the amount issue, that it was "bound" by the

jury verdict holding Picanso responsible for at least 500 grams but

less than 5 kilograms. This was true to the limited extent that

under Apprendi, this finding fixed the maximum sentence permitted

by the statute at 40 years; but it was false as to the proper

determination of Picanso's guideline sentence which resolved

(subject to the 40-year maximum) just how much time he would

actually serve. See Derman v. United States, 298 F.3d 34, 42-43

(1st Cir.), cert. denied, 123 S. Ct. 636 (2002). The guideline

range is driven, in drug cases, primarily by quantity (together

with criminal history category).

A jury determination as to the quantity of drugs for

which the defendant is responsible does not prevent the district

court from finding a larger amount in the course of determining the

guideline sentence.2 The reason is straightforward. In making its

2
This is settled law in the circuits including this one. See
United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001); see also
United States v. Titlbach, 300 F.3d 919, 922 (8th Cir. 2002), cert.
denied, 123 S. Ct. 926 (2003); United States v. Smith, 308 F.3d
726, 744 (7th Cir. 2002); United States v. Dennis, 271 F.3d 71, 73-

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own quantity determination for the purpose of determining the

statutory maximum, the jury asks what quantity has been proved

beyond a reasonable doubt. See Apprendi, 530 U.S. at 490. By

contrast, in fixing the guideline sentence, the district court is

supposed to ask whether the government has proven the pertinent

amount by a preponderance of the evidence. See, e.g., United

States v. Eirby, 262 F.3d 31, 36-37 (1st Cir. 2001). The judge

could therefore quite rationally find an amount higher than was

found by the jury. See United States v. Watts, 519 U.S. 148, 156

(1997) (per curiam).

Admittedly, this is lawyers' logic. Cf. Restatement

(Second) of Judgments § 28(4) & comment f (1982); id. § 85, comment

g. Many laymen, told that the jury's verdict was being ignored,

would think that there was something wrong. Some might think this

appearance problem is reason enough to change the law and--in the

sensitive context of criminal sentencing--to respect the jury's

finding despite the discrepancy in burdens of proof. But, as the

law stands, the district judge is not only free to make his own

independent finding but is essentially obliged to do so. Edwards

v. United States, 523 U.S. 511, 514 (1998) (guidelines "require the

judge to determine" nature and quantity of drugs involved

"regardless of jury's actual, or assumed, beliefs"); cf. Watts, 519

74 (2d Cir. 2001) (per curiam) (jury special interrogatories). We
recently reaffirmed this reading of Apprendi in United States v.
Goodine, 326 F.3d 26, 27, 32-34 (1st Cir. 2003).

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U.S. at 156 (sentence enhancement can be based on conduct acquitted

by jury).

At the sentencing hearing, the district judge–-although

starting with the claim that he was "bound" by the jury's quantity

determination–-steadily backed away from that position under the

force of the government's respectful argument. For example, when

the district judge said he would create a legal issue if he

departed from the jury's finding, the government explained that he

would instead create one if he rested on that finding. In the end,

the district court made a ruling that Picanso was responsible for

500 grams to 2 kilos, stating that he was "not bound, but inclined"

to agree with the jury and that at least this ruling would be "in

harmony" with the jury's verdict.

On appeal, the government argues that the district judge

remained under the misapprehension that he either was bound by the

jury's verdict or should at least give it substantial weight. If

the former were true, this would clearly be legal error, United

States v. Tavano, 12 F.3d 301, 307 (1st Cir. 1993), and arguably so

in the latter case, too, notwithstanding the seemingly contrary

view of the Sixth Circuit, United States v. Prior, 941 F.2d 427,

430-31 (1991). But our own judgment, after a careful review of the

full and extensive colloquy, is that the district judge got the

message even though he did not like it. We are also confident that

a remand on this point would not change the ultimate result.

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 It is a different question whether the district court's

own finding that Picanso was liable for 500 grams to 2 kilograms is

clear error. The government says that–-at least under a

preponderance standard--the evidence virtually compelled a finding

that Picanso was responsible for 5 to 15 kilos. Put differently,

the government says that it was clear error for the district court

not to accept the recommendation of the probation officer. The

difference in quantity is important: given Picanso's organizer

adjustment and criminal history category, the first amount

implicates a guideline range of 108-135 months; the latter 210-262

months. U.S.S.G. § 2D1.1(c)(4), (7); id. Ch. 5, Pt. A.

There is certainly a very good argument for the higher

range urged by the government–-and Picanso took a serious risk if

he provoked the cross-appeal--but the facts are peculiar. The

district court's smaller figure corresponds to hard evidence of

direct sales; the government's larger ones are based on the PSR's

rough extrapolation based on Picanso's ongoing involvement in drug

dealing; on reports of what Picanso said, possibly in boasts; and

on the belief that the funds seized from the house of Picanso's

girlfriend were his own drug proceeds. If we were making our own

finding, the combined weight of this evidence might well persuade

us.

Yet this time the "clearly erroneous" standard works in

Picanso's favor. See United States v. Rivera-Maldonado, 194 F.3d

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224, 228 n.2 (1st Cir. 1999) ("broad discretion" of district

court); Rivera, 994 F.2d at 952. The appraisal of amount depends

on inference drawing and perhaps credibility and we are not only

loath but forbidden to substitute our own de novo assessment for

that of the judge who tried the case and heard the evidence first

hand. There were two close calls in this case–-one as to role in

the offense and the other as to amount. One went for the

government and the other for Picanso. Someone has to have the last

word on close calls as to the facts and it is right that it should

be the district judge.

Affirmed.

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