United States v. Laboy

United States Court of Appeals
For the First Circuit

No. 02-1865

UNITED STATES,

Appellee,

v.

VICTOR LABOY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.

Jonathan Shapiro for appellant.
John A. Wortman, Jr., Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellees.

December 9, 2003

*
Of the Northern District of California, sitting by
designation.
 LIPEZ, Circuit Judge. This case requires us to determine

whether the district court correctly attributed more than one

kilogram of heroin to defendant-appellant Victor Laboy when

sentencing him on a drug distribution charge. We must also

determine whether the district court correctly imposed a leadership

role adjustment for Laboy's gang activities. Finding no error, we

affirm.

I.

From the spring of 1999 until early 2000, the Federal

Bureau of Investigation monitored a street gang in Lawrence,

Massachusetts known as the Latin Gangsta' Disciples ("LGD"). The

FBI suspected that LGD members were, among other activities,

selling heroin in the Lawrence, Massachusetts area. The FBI used

surveillance devices to monitor LGD meetings and used cooperating

witnesses ("CWs") to make controlled purchases of heroin from

suspected LGD members.

In the summer of 1999, appellant Victor Laboy made three

documented heroin sales to CWs.1 On July 9, 1999, Laboy sold

heroin to a CW who originally wanted to buy from Luis Flores, the

highest ranking member of the LGD. Laboy told the CW that he could

take care of the CW from his own supply; that he and Flores were

partners; and that their source of heroin was the same. Indeed,

1
The total weight of the heroin that Laboy sold on these
three occasions was approximately 2.54 grams.

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the markings on the packages that Laboy sold that day matched those

on packages that Flores sold on previous occasions. At one point,

Laboy suggested that he and the CW join together to sell heroin in

nearby Haverhill, Massachusetts. After the sale, he called Flores,

in the CW's presence, in an attempt to replenish his stock.

This scene repeated itself three days later when a CW,

again unable to find Flores, instead sought out Laboy. Laboy again

supplied heroin and stated that he and Flores were partners.

Again, he expressed interest in partnering with the CW to sell

heroin in another city.

On July 23, 1999, a CW made a third purchase from Laboy.

At this meeting, Laboy stated that he was no longer in partnership

with Flores because Flores' source was selling inferior quality

heroin and Laboy was losing money on it. Now he was running his

own operation and had at least one person working for him. Again,

he tried to recruit the CW to sell heroin on his behalf.

On July 28, 1999, a CW accompanied Laboy in an attempt to

collect money from yet another person who was dealing heroin for

Laboy. During their conversation, Laboy told the CW about his

"regular customers," including one who "comes every two days... for

six or seven [bundles]."2 They proceeded to search for Wilberto

2
The district court estimated that the average bundle of
heroin sold by LGD members during the investigation was
approximately .23 grams. The average weight per bundle of heroin
that Laboy sold during the three controlled buys was slightly less,

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Colon, whom Laboy identified as one of his suppliers. They planned

to purchase 10 grams from Colon that day, and Laboy indicated that

he had purchased as much as 20 grams from Colon in the past.

Eventually they discarded the idea because Laboy discovered that

Colon had just made a sale of 20 grams. In Laboy's estimation,

there would not be a ready market for more heroin that day.

Laboy was not the only member of the LGD that sold heroin

during the summer and fall of 1999. The FBI documented more than

100 grams of direct heroin sales by Laboy's associates during its

investigation. Several of these members acknowledged a

relationship with Laboy. Wilberto Colon discussed his heroin

business with a CW in Laboy's presence and stated that he sold to

"Papito," Laboy's street name. Two CWs stated that they sold

several bundles a day on Laboy's behalf.

By the fall of 1999, Laboy had moved to Salem, New

Hampshire - a town about six miles from Lawrence. Nevertheless, he

returned to Lawrence to attend LGD meetings.3 During these

meetings, LGD members discussed the distribution of drug proceeds.

Flores demanded that he receive $50 from each sale by LGD members:

at .17 grams per bundle. Using either figure, the customer to whom
Laboy refers would have been buying more than a gram of heroin
every two days.
3
The FBI recorded four LGD meeting between September 12, 1999,
and October 24, 1999. Laboy attended at least two - one on
September 29, 1999, and one on October 24, 1999.

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"We got a business on Park Street... I give you a bundle [of

heroin], I want fifty bucks out of it... if I'm paying for it, you

gonna give me my money regardless...." They discussed the failure

of some members to contribute money to the gang "fundle" - a fund

used to purchase firearms and bail out gang members who had been

arrested. Members recounted violence against other gangs, and the

need to protect LGD's "turf" in Lawrence from anyone else who would

try to sell drugs in the area.

At one meeting, LGD member Manuel Rivera referred to

Laboy as one of several leaders of the gang, saying to LGD

"captain" Edgardo Colon:

you, T-Roc [Flores], Pinchy [Santiago] and []
Bocerro [Laboy]... you [] are the ones running
this... you [] supposed to communicate at all
times and let each other know what's going
on... we an organization.

Flores also referred to Laboy as one of several leaders of the

gang, stating that, if anything happens, "I want it brought to

me... if not brought to me, brought to one of the heads,... Pinchy

[Antonio Santiago,]... Galdi [Edgardo Colon] or Bocerro [Laboy]...

or Chupacabra [Juan Matias]."

Based on the controlled drug sales and surveillance tapes

of the gang meetings, the FBI arrested Laboy and several other LGD

members in January 2000.

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 II.

On October 9, 2000, Laboy pleaded guilty to three counts

of heroin distribution for the three controlled purchases he made

to CWs.4 At the sentencing hearing, the district court heard

testimony from an FBI agent and a CW about the inner workings of

the LGD and its members' drug dealing. It also considered the

admissions made by other LGD members who had pleaded guilty to

heroin distribution, including information about quantities and

frequency of sales. The court examined Laboy's relationship with

other LGD members, both through the gang and individually.

The court found, by clear and convincing evidence,5 that

Laboy and other LGD members had "jointly undertaken" various

activities, within the meaning of U.S.S.G. § 1B1.3,6 to advance

their collective heroin business. Because of this cooperation, the

court held Laboy accountable for all heroin distributed by other

LGD members during the course of the FBI's investigation. It

further found that LGD members had distributed, and thus that Laboy

was responsible for, more than one kilogram of heroin. Finally, it

4
The Government dropped several other charges. Charges of
conspiracy were severed from the proceeding.
5
The district court was only required to make these findings
by a preponderance of the evidence. See United States v. Lombard,
102 F.3d 1, 4-5, (1st Cir. 1996). Nevertheless, it chose to apply
both standards, apparently to emphasize the strength of the
evidence.
6
See infra Part III.A.

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found that Laboy, through his role in the LGD, was an organizer or

leader of an "otherwise extensive" organization, under U.S.S.G. §

3B1.1. The court applied a base offense level of 32, with a 4

point adjustment for Laboy's role in the offense, and a three point

reduction for acceptance of responsibility. It sentenced him to

168 months in prison, 3 years supervised release and a $300 special

assessment.

III.

On appeal, Laboy offers two arguments: first, that the

district court erred in holding him responsible for more than one

kilogram of heroin, and second, that it erred in adjusting his

sentence for his leadership role in the LGD. We address each of

these arguments in turn.

A. Calculation of Drug Quantity

The district court need only determine drug quantities by

a preponderance of the evidence. United States v. Batista, 239

F.3d 16, 21 (1st Cir.), cert. denied, 534 U.S. 850 (2001). We

review such determinations for clear error.7 Id.

7
Appellee argues that since Appellant did not object to the
district court's method of drug calculation at sentencing, we
should review only for plain error. See, e.g., United States v.
Mojica-Baez, 229 F.3d 292, 306 (1st Cir. 2000)(applying plain error
standard where objections made at sentencing did not address the
issues on appeal). Appellant replies that he could not object at
sentencing because the specific method of quantity calculation was
revealed only in a subsequent memorandum from the court. Because
we find that the district court's quantity calculations meet the
clearly erroneous standard in any event, we need not decide the

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 Laboy first argues that he should be held accountable

only for the drug quantities involved in his three sales to CWs and

not for quantities sold by other LGD members. Drug quantity

determinations are not limited to the amounts involved in the

offense of conviction. Rather, a defendant may be held responsible

for drug quantities involved in his "relevant conduct." U.S.S.G.

§ 1B1.3. Such conduct may include a defendant's own acts or the

acts of others: the sentencing guidelines provide responsibility

for the acts of others in the case of "jointly undertaken criminal

activity", which includes any "criminal plan, scheme, endeavor or

enterprise undertaken by defendant in concert with others."

U.S.S.G. § 1B1.3(a)(1)(B). The guidelines state that a defendant

may be held responsible for

all reasonably foreseeable acts and omissions
of others in furtherance of the jointly
undertaken criminal activity, that occurred
during the commission of the offense of
conviction, in preparation for that offense,
or in the course of attempting to avoid
detection or responsibility for that offense.

Id. In the case of controlled substances, the defendant is

responsible for "all reasonably foreseeable quantities of

contraband that were within the scope of the criminal activity that

standard of review issue.

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he jointly undertook." U.S.S.G. § 1B1.3, cmt. (n.2).8 Thus, a

drug dealer who engages in criminal activity with others to further

their collective interests may be held liable for the quantities of

drugs sold by his partners, if those sales were a reasonably

foreseeable consequence of the jointly undertaken actions.

This type of liability, however, has its limit: mere

knowledge of another's activity is not enough to show liability

under U.S.S.G. § 1B1.3. Rather, "the central concept... is

foreseeability." United States v. O'Campo, 973 F.2d 1015, 1023

(1st Cir. 1992). The defendant is only responsible for foreseeable

conduct within the scope of his own explicit or implicit agreement.

See, e.g., United States v. Carrozza, 4 F.3d 70, 76 (1st Cir.

1993)("So as to keep the criminal responsibility within bounds, §

1B1.3 requires sentencing courts to ascertain on an individual

basis the scope of the criminal activity that the particular

defendant agreed jointly to undertake."); United States v.

Innamorati, 996 F.2d 456, 488-89 (1st Cir. 1993)("[E]ach member of

a drug conspiracy may be held accountable at sentencing for a

different quantity of narcotics, depending on the circumstances of

each defendant's involvement."). While a conspiracy charge may

8
"[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline." Stinson v. United
States, 508 U.S. 36, 38 (1993).

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encompass all acts by co-conspirators in furtherance of the

conspiracy, see Pinkerton v. United States, 328 U.S. 640, 647

(1946), "relevant conduct" is limited to the foreseeable acts

resulting from the defendant's particular agreement. Thus, the

scope of relevant conduct is "not necessarily the same as the scope

of the entire conspiracy." U.S.S.G. § 1B1.3, cmt. (n.2).

The record shows that Laboy was a high-level gang member

who fully participated in the LGD's drug trade.9 He was one of the

"heads" of the gang charged with overseeing gang activities

designed to protect the LGD's heroin operation. Through his

leadership in the LGD he helped to keep other dealers out of LGD

"turf," ensuring that only he and his fellow LGD members would be

able to deal heroin in the area. He stepped in to supply Flores's

customers when the LGD "Lord" was out of town. He had other LGD

members sell drugs on his behalf. Indeed, Laboy's actions closely

resemble an example from the guidelines:

Defendant Q, [a] street-level drug dealer,
pools his resources and profits with four
other street-level drug dealers. Defendant Q
is engaged in a jointly undertaken criminal
activity and, therefore, he is accountable

9
Laboy argues that he had stopped selling heroin and had
virtually severed all ties with the LGD by August 1999 and thus
cannot be held accountable for any drugs sold after that point.
The record, however, does not support this argument. As noted
above, see supra note 3, FBI videotapes recorded Laboy's presence
at LGD meetings on September 29, 1999 and October 24, 1999.
Laboy's participation in these meetings is evidence of his
continuing involvement with the LGD after August of 1999.

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 under subsection (a)(1)(B) for the quantities
of drugs sold by the four other dealers during
the course of his joint undertaking with them
because those sales were in furtherance of the
jointly undertaken criminal activity and
reasonably foreseeable in connection with that
criminal activity.

U.S.S.G. § 1B1.3, cmt. (n.2, illus. (c)(6)). Given the record of

Laboy's cooperation with other LGD members involved in the heroin

trade, the district court correctly considered their jointly

undertaken criminal activity in determining the quantity of drugs

for which Laboy was responsible.

In challenging the drug quantity calculation, Laboy next

argues that the district court impermissibly multiplied drug

amounts from single sales by the estimated frequency of those sales

to arrive at a total of more than one kilogram. Indeed, rote

multiplication of quantities from a single exchange is, taken

alone, an improper method for determining overall drug quantities.

See United States v. Rivera-Maldonado, 194 F.3d 224, 233 (1st Cir.

1999). This is especially true where an estimate of quantity is

multiplied by an estimate of frequency. Rather, drug quantities

must find specific support in the record, and "where significant

uncertainty exists, those findings [must] err on the side of

caution." Id.

However, when "the amount [of drugs] seized does not

represent the scale of the offense, the court shall approximate the

quantity of the controlled substance." U.S.S.G. § 2D1.1, cmt.

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(n.12). We have held that, when "it is impossible or impractical

to obtain an exact drug quantity for sentencing purposes, a

reasoned estimate will suffice." United States v. Morrill, 8 F.3d

864, 871 (1st Cir. 1993); see also United States v. Huddleston, 194

F.3d 214, 224 (1st Cir. 1999)(upholding a "reasoned approximation

of drug quantity, well supported by a preponderance of the

evidence"); United States v. Rodriguez, 162 F.3d 135, 149 (1st Cir.

1998)(upholding a "reasoned, if not conservative, estimate of the

drug quantity involved" in the offense). We have upheld findings

that are supported by a preponderance of the evidence and are based

on a "conservative approach." U.S. v. Sklar, 920 F.2d 107, 113-14

(1st Cir. 1990). Thus, the mere fact that a district court used

estimates to determine drug quantities does not, alone, constitute

reversible error.

In making its estimates, the district court looked both

at gang activities and at Laboy's direct involvement with various

dealers. First, the court accounted for sales by LGD members Kenny

Cruz and Roberto Pagan, who worked directly for another LGD

"captain," Edgardo Colon. In pleading guilty to conspiracy

charges, Cruz admitted that he was directly responsible for 750

grams of heroin. Pagan similarly pleaded guilty, taking

responsibility for at least 1000 grams of heroin. These admissions

alone account for almost twice the court's one kilogram finding.

However, to ensure a conservative estimate, the court reduced the

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amounts attributed to Pagan and Cruz to between 542-828 and 427-499

grams respectively.

The court also looked at sales by members of the LGD

leadership. Edgardo Colon sold heroin to a CW and gave out his

brother Wilberto's beeper number to set up future sales. Another

captain, Antonio Santiago, admitted to selling more than 100 grams.

The LGD "Lord," Luis Flores, sold heroin to a CW, tried to recruit

the CW to sell heroin on his behalf, and admitted to selling "rock"

24 hours a day. He stated at the September 26 LGD meeting: "My

life... all I do is sell my drugs...." All told, CWs purchased 108

grams of heroin from LGD members in controlled buys, undoubtedly a

small fraction of what its members were distributing to other

sources.

This extensive record of individual sales by LGD members,

added to Laboy's own activities, supports attributing one kilogram

of heroin to Laboy. Indeed, it is a conservative estimate. In

opposition, Laboy contends that some of the testimony and

admissions used by the district court in making its determination

were unreliable. However, "[t]he 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."

U.S. v. Picanso, 333 F.3d 21, 27 (1st Cir. 2003). Thus we find no

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error in the court's decision to hold Laboy responsible for one

kilogram of heroin.

B. Role Adjustment

Laboy also argues that the district court erred in

enhancing his sentence by finding that he was an "organizer or a

leader of a criminal activity that involved five or more

participants or was otherwise extensive" under U.S.S.G. § 3B1.1.

In applying U.S.S.G. § 3B1.1, "a district court must make both a

status determination - a finding that the defendant acted as a

leader or organizer of the criminal activity - and a scope

determination - a finding that the criminal activity met either the

numerosity or extensiveness benchmarks established by the

guidelines." United States v. Tejada-Beltran, 50 F.3d 105, 111

(1st Cir. 1995). Determining the defendant's role in the offense

is necessarily a "fact-specific task." Id. at 110. We review the

district court's factual findings for clear error, giving "due

deference to the district court's application of the guidelines to

the facts." United States v. Joyce, 70 F.3d 679, 681 (1st Cir.

1995). We review its legal interpretation of the guidelines de

novo. See, e.g., United States v. Brennick, 337 F.3d 107, 110 (1st

Cir. 2003).

As with the determination of drug quantities, the court

may draw on all "relevant conduct" when determining whether the

defendant was an "organizer or leader" for the purposes of the

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guidelines. See, e.g., United States v. Ruiz-Batista, 956 F.2d

351, 353-54 (1st Cir. 1992). The guidelines direct the sentencing

court to a variety of factors in making this determination.

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, cmt. (n.4). The record demonstrates that Laboy

engaged in several of these activities. He attended LGD meetings

and was identified as a leader in the gang, ranking just below the

LGD "Lord." Lower level gang members were directed to take their

problems to Laboy and the other "heads" of the LGD. The LGD

claimed a share of heroin proceeds to be placed in the "fundle."

Laboy had several gang members selling drugs on his behalf. He

even attempted to recruit at least one CW to sell heroin for him.

Based on this record, we cannot say that the district court clearly

erred in finding that Laboy was a leader or organizer of the LGD.

While conceding that the district court may look to all

"relevant conduct" when determining the "organizer" or "leader"

elements, appellant would have us limit the "five or more

participants" and "otherwise extensive" elements solely to the

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offenses of conviction.10 In essence, appellant argues that the

numerosity/extensiveness requirement must be satisfied only by

people directly involved in the three drug sales to which Laboy

pleaded guilty, and not by the people or organization that

contributed to the "relevant conduct" surrounding those specific

offenses.

Our precedent does not support such an approach. Rather,

we have said that the extensiveness requirement depends on "the

totality of the circumstances, including... the width, breadth,

scope, complexity, and duration of the scheme." Deitz, 950 F.2d at

53. On several occasions, we have found the extensiveness

requirement met by the relevant conduct surrounding the offense of

conviction. See, e.g., Tejada-Beltran, 50 F.3d at 113 (finding

that a scheme to smuggle illegal immigrants met the extensiveness

10
The "five or more participants" and "otherwise extensive"
elements are alternative means of finding the required scope under
§ 3B1.1. The sentencing court need only find one or the other, not
both. See U.S. v. Deitz, 950 F.2d 50, 53 (1st Cir. 1991)(finding
that the "otherwise extensive" element is distinct from and does
not necessarily incorporate the "five or more participants"
element); Tejada-Beltran, 50 F.3d 105, 113 (1st Cir. 1995)("[T]he
criminal activity must meet either the extensiveness or the
numerosity benchmark, not necessarily both...."). Nevertheless,
the district court found that both elements were satisfied: "[t]he
'five or more participants' standard is met by reviewing the
attendees at gang meetings, who plainly facilitated the
distribution of drugs at the direction of the President and
Captains at LGD. The 'otherwise extensive' standard is met by the
complexity of the organizational structure of the LGD, its reach
into the community etc." United States v. Flores, 230 F. Supp.2d
138, 150 (D. Mass. 2002).

-16-
requirement because of "the breadth of the activities, whether

measured in terms of duration, number of clients, or geographic

reach...."); United States v. Graciani, 61 F.3d 70, 76 n.7 (1st

Cir. 1995)(finding the extensiveness requirement met by "a ledger

that established a wide-ranging pattern of drug trafficking

activities, and a trash bag containing thousands of empty vials

used to package crack cocaine.").

Further, the commentary to the guidelines does not

support appellant's reading. The introductory commentary to

Chapter 3, part B simply states that the "defendant's role in the

offense is to be made on the basis of all conduct within the scope

of § 1B1.3 (Relevant Conduct)... and not solely on the basis of

elements and acts cited in the count of conviction." U.S.S.G.

Ch.3, Pt.B, intro. cmt. It does not distinguish between any of the

various elements that may lead to a role in the offense adjustment.

Further, the commentary to § 3B1.1 refers to determining whether an

"organization" involved in a crime, rather than the crime itself,

is otherwise extensive. U.S.S.G. § 3B1.1, cmt. (n.3). It also

states that the sentence should increase with "the size of a

criminal organization," without expressly limiting extensiveness or

complexity to the crime of conviction. U.S.S.G. § 3B1.1, cmt.

(backg'd.). Thus, both our precedent and the commission's

commentary indicate that district courts may consider relevant

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conduct beyond the crime of conviction when determining the

numerosity and extensiveness requirements.

The relevant conduct surrounding Laboy's heroin sales

included "five or more participants" and demonstrated that the LGD

was an "otherwise extensive" organization under U.S.S.G. § 3B1.1.

The LGD consisted of more than 20 members, organized to protect

gang "turf" and prevent any other gangs from competing with their

heroin "business" in the Lawrence area. Lower level gang members,

or "soldiers," were required to go on "missions" to carry out gang

objectives. Members pooled funds from their individual drug sales

to ensure that LGD members could be bailed out of jail and have

access to firearms. Finally, the LGD had a clear hierarchy, with

Luis Flores as the "Lord" of the gang, and several "captains",

including Laboy, who collectively directed gang activity. This

record is more than sufficient to support a determination that the

LGD was "otherwise extensive" or included "five or more

participants."

IV.

For the foregoing reasons, we find no error in the

district court's sentence.

Affirmed.

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