United States v. Aitoro

United States Court of Appeals
For the First Circuit

No. 04-1742

UNITED STATES,

Appellee,

v.

JOSEPH AITORO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Judith H. Mizner for appellant.
David H. Kyosza, with whom Michael J. Sullivan, United
States Attorney, and Kimberly P. West, Assistant U.S. Attorney,
were on brief, for appellee.

May 12, 2006
 STAHL, Senior Circuit Judge. This appeal challenges the

denial of defendant Joseph Aitoro's motion to suppress evidence and

the validity of the sentence imposed after the defendant's entry of

a guilty plea and subsequent conviction. We find no error in the

court's denial of the motion to suppress or the court's factual

findings at sentencing, but vacate the sentence imposed and remand

the case for resentencing in light of United States v. Booker, 543

U.S. 220 (2005).

I.

On the evening of July 10, 2001, several officers with

the Boston Police Department (BPD) were conducting a field

investigation in the area on the border between Roxbury and

Dorchester known as Grove Hall.1 The officers were stationed in

the area around the intersection of Maple and Cheney Streets, a

location described by the district court as "a high crime area with

frequent street-level drug selling activity." On the night in

question the weather was clear and the streets and intersection

were well lit by street and building lights. Two officers, James

Rattigan and John Conroy, were positioned on the roof of a four-

story building overlooking the intersection, equipped with

binoculars for surveilling the street below and with a walkie-

talkie for communicating with the officers on the street. Three

1
We relate the facts as found by the district court during the
suppression hearing and at sentencing.

-2-
more officers were positioned on Cheney Street, watching two

teenagers sitting on a stoop down the block. Other officers had

distributed themselves around the area.

Just after ten o'clock, appellant Joseph Aitoro and one

Deshawn Williams walked down Maple Street in the direction of

Cheney Street. The two men spotted the three officers on Cheney

Street, who had gotten out of their car in order to interview the

teenagers they had been observing.2 Aitoro and his companion

appeared quickly to recognize the three men as police officers.

Officer Conroy, from up on the roof, heard one of the two men

exclaim "Oh shit," and the pair then "did an abrupt about-face and

sprinted in the reverse direction up Maple Street."

Both men were wearing loose Hawaiian-style shirts that

partially obscured the officers' view of their waists from the

roof, but as they turned to run, Officer Rattigan saw Aitoro grab

at the waist of his pants, where Rattigan saw a bulge that he

thought was a gun. Although Williams had his hands in front of him

and Rattigan could not see his precise movements, Rattigan

perceived Williams also grabbing at his waist, and suspected that

he, too, was reaching for a gun. Rattigan radioed supporting

officers with instructions to stop the fleeing men, warning that

2
The three officers were not in uniform, but they nevertheless
"stood out like a sore thumb in the area." One wore a BPD baseball
shirt, while the other two were visibly equipped with handcuffs,
flashlights, and police identification.

-3-
they might be armed. Officer Martin Conley and other officers in

a van nearby saw Aitoro and Williams, who by then had slowed to a

walk, and stopped them. Conley frisked Aitoro and felt a pistol

jammed into his pants at the waist. A second officer frisked

Williams and found he too was carrying a gun. The officers

arrested Aitoro and Williams.

Aitoro was held in a Suffolk County jail until October

27, 2001, when he was released on bail. The record reveals little

about Aitoro's activities or whereabouts over the course of the

next several months, but on May 10, 2002, a team of officers from

the BPD, along with agents from the federal Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF), executed a search warrant

at an apartment in Dorchester. There they found Aitoro asleep in

bed, along with two loaded firearms, additional ammunition, three

bags of cocaine base, six bags of heroin, and a bag of marijuana.

They again arrested Aitoro.

On June 26, 2002, Aitoro was charged in an indictment

with one count of possessing a firearm and ammunition as a

convicted felon under 18 U.S.C. § 922(g)(1) (2000) stemming from

the seizure of the gun from Aitoro's person in July 2001; a second

count of the same stemming from the seizure of the two firearms

from the room in which Aitoro was found in May 2002; two counts of

possession with intent to distribute a controlled substance under

21 U.S.C. § 841(a)(1) (2000), one each for the cocaine base and the

-4-
heroin seized from the Dorchester apartment; and one count of

possession of a firearm in furtherance of a drug trafficking

offense under 18 U.S.C. § 924(c). A superceding indictment handed

down by a grand jury on July 24, 2002, reiterated the charges

against Aitoro and added Deshawn Williams as a codefendant under

another felon-in-possession charge.3

Aitoro moved to suppress the pistol found on his person

in July 2001 as the fruit of an unconstitutional search.4 He

argued that the officers who stopped him on that July night lacked

grounds to suspect him of wrongdoing, or, if they had rightfully

stopped him, lacked grounds to frisk him. The district judge

denied the motion, finding that Aitoro's exclamation at the sight

of the police, his subsequent flight, his grabbing at his waist,

and the fact that the incident took place in an area known for a

high incidence of crime gave the police reason to stop Aitoro and

sufficient concern for their safety to justify the frisk.

Under a plea agreement, Aitoro pled guilty to the felon-

in-possession and narcotics charges, reserving his right to appeal

the denial of his suppression motions and change his plea if

successful. His trial on the charge of possessing a firearm in

3
Williams and Aitoro were named together in the indictment,
and Williams, like Aitoro, pled guilty to the felon-in-possession
charge, but Aitoro is the sole appellant here.
4
Aitoro also moved to suppress the drugs and firearms found in
May 2002. The motion was denied and the issue is not raised on
appeal.

-5-
furtherance of a drug trafficking offense resulted in an acquittal

by a petit jury in January 2004.5

At sentencing, the court determined that Aitoro merited

a criminal history category of V. The court calculated Aitoro's

base offense level under the drug quantity guideline, USSG § 2D1.1,

and found that Aitoro had possessed 5.85 grams of cocaine. Aitoro

challenged the drug quantity finding, highlighting an apparent

disparity between earlier and later recorded weights of the drugs

the police had seized. The record contained three documents

indicating the weight of the drugs as measured at various times

after Aitoro's arrest. The first was an inventory taken of

Aitoro's possessions at the time of his arrest in May 2002. That

inventory was produced by the ATF, and documented the seizure,

among other items, of:

• NARCOTICS: HEROIN, QTY: .9, MEA: GRAMS, (1)
PLASTIC SANDWICH BAG CONTAINING TWO SEPARATE
BUNDLES OF SUSPECTED HEROIN

• NARCOTICS: CRACK COCAINE, QTY: 2.5, MEA:
GRAMS, (3) PLASTIC SANDWICH BAGS CONTAINING
SUSPECTED CRACK COCAINE

• NARCOTICS: MARIJUANA, QTY: 14.7, MEA: GRAMS,
(1) PLASTIC SANDWICH BAG CONTAINING SUSPECTED
MARIJUANA

According to the ATF documents, after being stored for six weeks by

the ATF, the drugs were sent to a Massachusetts drug laboratory for

5
The principal defense theory at trial was that the government
had not proved that Aitoro's possession of the firearms was "in
furtherance" of drug trafficking.

-6-
analysis. A second document, a receipt given by the state lab to

the ATF when the lab received the drugs, listed:

• Six (6) Glassine Bags of Powder - 4.91 grams6

• Three (3) P/Bs White Rock Substance - 12.96
grams

• One (1) P/B Green Leaf Substance - 18.02
grams

These weights were identified as "Gross Weight[s]" on the receipt,

indicating that they were the combined weights of the drugs

themselves and the bags holding those drugs. The lab analyst who

processed the heroin weighed the contents of only one of the six

glassine bags of heroin but did not weigh the marijuana. He did

calculate the precise net weight of the cocaine seized. His

worksheet describing his analysis of the cocaine base listed a

gross weight of 12.9182 grams and a net weight of 5.8543 grams.

Aitoro contended that the lower weights indicated on the

ATF inventory cast too much doubt on either the reliability of the

later weights or the identity of the earlier- and later-weighed

drugs to support a finding that the later figures were accurate

measures of the drugs with which Aitoro had been found. The

district court disagreed, finding that the drugs weighed in the

6
Although the ATF inventory and the state lab receipt
described the heroin packaging somewhat differently ("two separate
bundles" versus "six glassine bags"), the suggestion is that each
of the "two separate bundles" listed on the ATF inventory contained
three small bags of heroin. Nowhere does the defendant suggest
that the ATF and state lab descriptions are inconsistent.

-7-
state lab were the drugs seized from Aitoro's room, and that the

state lab weights were accurate. The state lab's 5.8543-gram

figure for the cocaine base became the basis for a base offense

level of 26 under USSG § 2D1.1.

The district court then imposed a two-level upward

adjustment for possessing a firearm in close proximity to

controlled substances under USSG § 2D1.1(b)(1) and a three-level

downward adjustment for acceptance of responsibility under USSG §

3E1.1(a) & (b). These adjustments produced a total offense level

of 25. The guidelines sentencing range that resulted was for a

sentence of between 100 and 125 months. The court, sentencing

before the decision in Booker, took the Guidelines as binding and

imposed a sentence of 100 months, the low end of the guidelines

range. It did so despite noting that Aitoro had a long arrest

record and after giving him a warning that he needed to reform. It

observed that Aitoro was obviously intelligent, was an engaged

participant in his own defense, accepted responsibility for his

crime, and had a grandmother who loved him and a daughter for whose

upbringing he was responsible. Aitoro raised no constitutional

objection to his sentence. He now appeals the denial of his motion

to suppress and challenges his sentence.

II.

Aitoro presses five questions on appeal. He argues: 1)

that the July 2001 stop-and-frisk was unconstitutional and that the

-8-
gun found on his person should have been suppressed;7 2) that the

case should be remanded for resentencing under Booker, as

interpreted by United States v. Antonakopoulos, 399 F.3d 68 (1st

Cir. 2005) and United States v. Heldeman, 402 F.3d 220 (1st Cir.

2005); 3) that the government presented insufficient evidence to

support a finding by a preponderance that Aitoro possessed more

than five grams of cocaine base and 4) that in any event the

quantity of drugs in his possession had to be found by a jury and

beyond a reasonable doubt; and 5) that the terms of Aitoro's

supervised release should be interpreted to permit Aitoro's

probation officer to administer a maximum of three drug tests

during the supervised release period. We take each argument in

turn.

A. Stop-and-Frisk

Aitoro first challenges the district court's denial of

his motion to suppress the gun found during the July 2001 stop-and-

frisk, arguing that the police lacked grounds for both the stop and

the search. When reviewing a district court's determination that

evidence must or need not be suppressed on Fourth Amendment

grounds, we review the district court's factual determinations for

7
Aitoro made certain extemporaneous statements to the police
at the time of his first arrest, and moved to suppress those
statements along with the gun. There is no argument made that the
statements should be suppressed if the search that produced the gun
was proper, and for the sake of simplicity we therefore discuss
only suppression of the gun without making further mention of the
statements.

-9-
clear error. United States v. McKoy, 428 F.3d 38, 39 (1st Cir.

2005) (citing United States v. Cruz, 156 F.3d 22 (1st Cir. 1998)).

We review de novo the legal question whether a particular set of

facts justified a warrantless search or seizure. Id.

"An officer may conduct a brief investigatory stop when

he or she has a reasonable, articulable suspicion that criminal

activity is afoot." Id. (citing Terry v. Ohio, 392 U.S. 1, 30

(1968); United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004)).

"After a valid Terry stop, a pat-frisk for weapons is also

permissible where 'the officer is justified in believing that the

person is armed and dangerous to the officer or others.'" Id.

(quoting Romain, 393 F.3d at 71). Whether the stop and the frisk

were reasonable "is evaluated in the context of the totality of the

circumstances and demands a 'practical, commonsense approach.'"

United States v. Jones, 432 F.3d 34, 40 (1st Cir. 2005) (quoting

United States v. Sowers, 136 F.3d 24, 28 (1st Cir. 1998)). We have

little difficulty concluding that both the stop and the frisk of

Aitoro were proper.

Our conclusion as to the initial stop is dictated by the

Supreme Court's decision in Illinois v. Wardlow, 528 U.S. 119

(2000). Wardlow turned primarily on two factors: the defendant's

presence in an area known for heavy narcotics trafficking and the

defendant's "headlong flight" the moment he noticed the police.

Wardlow, 528 U.S. at 124; see also United States v. Scott, 270 F.3d

-10-
30, 41 (1st Cir. 2001) ("An individual's flight from police

combined with other observations by a police officer may support

reasonable suspicion sufficient for detention under Terry."

(citing Wardlow, 528 U.S. 119)). This case would be closer to the

outer bounds of Wardlow had the surveilling officer not heard one

of the two fleeing men cry "Oh, shit" before turning to run, but in

light of that exclamation the officer had all the more reason to

think that the men had seen the police officers and were attempting

to evade apprehension. Furthermore, when the officers on the

ground encountered Aitoro and Williams a few minutes after they

took flight, they noticed them looking warily over their shoulders,

as if concerned about pursuers. That observation could reasonably

have further heightened the officers' suspicion that the two men

had run in order to avoid police detection.

Aitoro attempts to distinguish his case by noting that in

Wardlow, the police were specifically on the lookout for drug-

purchasing customers and scouts for drug traffickers looking for

approaching police, and that in that context, the fact that the

defendant in Wardlow was spotted carrying a bag made him, Aitoro

contends, a particular target for suspicion. This was because the

bag might have led the police to believe that he was participating

in drug trafficking. Aitoro claims that he was doing nothing that

would have singled him out as a participant in drug trafficking,

which was here, as in Wardlow, the reason for the neighborhood's

-11-
reputation as a high-crime area and the reason the police were in

the area in the first place. But Aitoro's exclamation and his

apparent reaching for his gun gave the police at least as much

additional basis for suspicion of involvement in narcotics

trafficking here as the Wardlow defendant's bag gave the police in

that case.8

Aitoro also raises a question about the factual predicate

for the district court's legal conclusion. He suggests that the

district court's conclusion that Aitoro recognized the officers in

question as police officers was dubious because the officers were

not in uniform and were standing perhaps 80 feet from the corner

when Aitoro and Williams came around the bend. The reasonableness

of a search entails an objective inquiry into the search from the

perspective of the searching officers, however, so what is relevant

is not whether Aitoro actually perceived the officers as police

8
It is true that there is no "firearm exception" to the
requirement that the police have particularized suspicion of
wrongdoing before conducting a Terry stop, which means that whether
the suspected criminal activity is possession of a gun or something
else, the police have to be able to justify a stop under the same
standard; the burden of justification where guns are concerned is
not lighter because the contraband is potentially more dangerous.
See Florida v. J.L., 529 U.S. 266, 272-73 (2000). But here, the
question is not whether the officers had sufficient reason to think
Aitoro was in illegal possession of a gun, but whether the
circumstances as a whole, including the fact that Aitoro had
apparently reached for a gun, were enough to give them sufficient
concern that some sort of criminal activity, such as narcotics
trafficking, was afoot.

-12-
officers, but whether the officers reacted reasonably on seeing him

flee.

Aitoro finally contends that, even if the stop itself was

permissible, the concomitant search of his person was not. This

argument is unavailing. When an officer sees a bulge in a

detainee's clothing and reasonably believes that bulge to be a

concealed weapon, under the right circumstances the officer will

have license to search the detainee. Here, "the bulge that the

officer observed in [Aitoro's waistband], when viewed in light of

the other details surrounding the encounter," -- i.e., Aitoro's

flight from the police and the fact that the neighborhood was known

for a high incidence of crime -- "permitted a reasonable inference

that appellant was armed and dangerous." United States v. Proctor,

148 F.3d 39, 42 (1st Cir. 1998); see also United States v. Trullo,

809 F.2d 108, 113-14 (1st Cir. 1987) (frisk incident to a stop was

justified by officer's concern that bulge in defendant's clothing

was a weapon). Aitoro makes a second argument based on the fact

that one of the officers on the roof radioed to the officers on the

ground to tell them to apprehend Aitoro and his companion and to

warn them that he had a gun, and that the frisking officer had not

seen the bulge that was thought to be a gun firsthand. Aitoro

implicitly questions whether it was reasonable for the officer on

the ground to rely on the warning of the officer on the roof, but

his argument fails. The police may rely on information from other

-13-
members of their force and respond accordingly. Cf. Romain, 393

F.3d at 71 ("[p]olice officers are not limited to personal

observations in conducting investigatory activities" (citing Adams

v. Williams, 407 U.S. 143, 147 (1972))). Under the circumstances

of the stop, and given warning that Aitoro likely had a gun, the

detaining officer was justified in frisking him, and the gun found

during the frisk need not have been suppressed.

B. Booker Remand

We next address the question of remand in light of

Booker, 543 U.S. 220, because our decision to remand the case has

some effect on how we approach the other questions Aitoro has

raised. The trial court erred in sentencing Aitoro because it

understood the Sentencing Guidelines as binding and sentenced

Aitoro accordingly. See Antonakopoulos, 399 F.3d at 75. Booker

subsequently excised the portions of the Federal Sentencing Act

that mandated sentencing within a calculated Guidelines range, and

we now review sentences imposed before Booker by assessing the

probability that a different sentence would have been imposed had

the district court understood the Guidelines as advisory. Where a

defendant has made an argument to the district court that it should

not consider itself bound by the Guidelines, the burden is on the

Government to demonstrate the harmlessness of the Booker error,

United States v. Vazquez-Rivera, 407 F.3d 476, 489 (1st Cir. 2005),

but where the defendant has not preserved such an objection, we

-14-
review for plain error, and the burden is on the defendant to

demonstrate "that there is a reasonable probability that the

district court, freed of mandatory guidelines, would have given him

a lower sentence." Antonakopoulos, 399 F.3d at 83. We are not

"overly demanding as to proof of probability where, either in the

existing record or by plausible proffer, there is reasonable

indication that the district judge might well have reached a

different result under advisory guidelines." Heldeman, 402 F.3d at

224. Because Aitoro did not preserve a Booker objection below, we

apply this plain error analysis.

We believe there is some chance that the court might have

imposed a different sentence under an advisory Guidelines regime.

To begin with, the district court sentenced Aitoro to the minimum

sentence available within the Guidelines range, a factor that is

not dispositive of our plain error consideration but which we have

deemed highly relevant. See, e.g., United States v. Wilkerson, 411

F.3d 1, 10 (1st Cir. 2005). Perhaps cutting against Aitoro is the

judge's comment that Aitoro had a "terrible" record, admonishing

him that, "You've just got to get out of this" and that, "At some

point someone is going to throw away the key," but that is likewise

not dispositive, see United States v. Lewis, 406 F.3d 11, 21-22

(1st Cir. 2005), and it is notable that the court did not "throw

away the key" itself. Addressing Aitoro, the court indicated some

of its reasons for not doing so, saying, "You, obviously, have a

-15-
brain and the ability to use it," and highlighting its hope for

Aitoro's rehabilitation by continuing, "When you get out you need

to use that brain of yours and support your kids and work." The

court also praised Aitoro's involvement in his own defense, and

noted that he had a loving family and a baby daughter to support.

The court noted the "sad[]" fact that the sentence it imposed, long

as it was, was shorter than many, because the drug sentences it is

routinely called upon to impose "are off the chart," perhaps

indicating a concern that the Guidelines recommendations fail in

some cases to take into account relevant mitigating circumstances.

The court's apparent sympathy for the defendant,9 stated hope for

his rehabilitation, and frustration with the length of some

sentences imposed in drug cases, together with the fact that it

sentenced at the bottom of the Guidelines range, are sufficient to

carry the relatively undemanding burden a defendant must meet under

Antonakopoulos and Heldeman.10

9
Of particular note is the court's indication of the interest
it took in Aitoro's family circumstances. Under the Guidelines,
courts are discouraged from taking family circumstances into
account, see USSG § 5H1.6, and before Booker the court would have
been unlikely to take them into account in imposing sentence.
After Booker, however, the fact "[t]hat a factor is discouraged or
forbidden under the guidelines does not automatically make it
irrelevant when a court is weighing the statutory factors apart
from the guidelines." United States v. Smith, No. 05-1725, ---
F.3d ---, 2006 WL 893622, at *3 (1st Cir. April 7, 2006).
10
Following our suggestion in Heldeman that information
tendered to the court in a supplemental filing may be useful in
demonstrating the requisite probability that a court would sentence
differently under an advisory system, Aitoro has made an

-16-
C. The Drug Quantity Finding

Aitoro next challenges the drug quantity finding that

supports the sentence imposed. Although we are vacating that

sentence, we think it wise to address the propriety of the quantity

determination in order to aid the district court at resentencing.

The district court imposed sentence on the basis of its

determination that Aitoro had been in possession of 5.85 grams of

cocaine base. It is the government's burden at sentencing to prove

drug quantity by a preponderance of the evidence, United States v.

Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993), and Aitoro contends

that the drug quantity found by the court was unsupported by such

a preponderance.

There were significant disparities among the recorded

weights of the drugs at issue as variously measured by the ATF in

"Antonakopoulos proffer" (more properly a "Heldeman proffer"). The
filing identifies information, most particularly family
circumstances, that the district court might view in a different
light in a post-Booker world, and information that has emerged
since sentencing, such as Aitoro's so-far successful enrollment in
employment-related courses offered via a prison program. We have
noted that "if a remand for resentencing is otherwise justified, it
is quite arguable that the sentence on remand can and should take
account of intervening facts that normally bear on sentencing,"
United States v. Lata, 415 F.3d 107, 113 n.3 (1st Cir. 2005)
(citing United States v. Hughes, 401 F.3d 540, 560 n.19 (4th Cir.
2005)), but that in evaluating the need for Booker remand "our
focus is primarily upon what was known at the time of sentencing."
Id. at 113. We are skeptical of the propriety of considering post-
sentencing developments in the ordinary Booker-remand case, but
here we are persuaded that Aitoro's case requires remand solely on
the basis of facts known at the time of sentencing and so need not
decide whether and when it might be permissible to do so.

-17-
its initial inventory of the items seized, by the Massachusetts

state drug lab on the receipt it gave the ATF, and on the worksheet

describing the results of the state lab's analysis. The ATF

inventory listed the gross weights of the drugs and packaging

seized as 14.7 grams for the marijuana, 2.5 grams for the cocaine

base, and 0.9 grams for the heroin. The state lab receipt listed

higher gross weights for each of the drugs: 18.02 grams for the

marijuana, 12.96 grams for the cocaine base, and 4.91 grams for the

heroin. The state lab analysis reported a slightly lower and more

precise gross weight for the cocaine base -- the only drug fully

weighed by the lab -- at 12.9182 grams.

The question on appeal is whether the disparities are

better explained by tampering with or mistaken replacement of the

cocaine base while it was in ATF custody or by inaccuracy in one of

the scales. The district court concluded that the ATF scale was

highly inaccurate, while Aitoro contends that tampering is the

obvious explanation. We agree with the district court.

Aitoro's argument asserts that the marijuana and heroin

weights stayed roughly the same between being weighed by the ATF

and by the state lab, while the cocaine base weight shifted

dramatically. Were two drug packages to have registered consistent

weights at the two different times of measurement while a third

registered a dramatic increase, we would think the district court

ought to have been wary of relying on the heavier of the disparate

-18-
measurements. Such a scenario would suggest that the first and

second scales were similarly accurate, and the unexplained

disparity would suggest tampering or mistake. Here, however, the

marijuana registered an increase of 3.3 grams (roughly a 22%

increase), the cocaine base an increase of 10.5 grams (a 420%

increase), and the heroin an increase of 4.0 grams (a 444%

increase).11

While in terms of gram weight the cocaine base registered

a greater increase than the heroin or marijuana, all of the initial

weights appear so divergent from the weights listed by the state

lab that the district court concluded that one of the scales, the

one used by the ATF, was simply and grossly inaccurate. Bolstering

11
Aitoro's argument that the heroin weights on the ATF
inventory and on the state lab worksheet were roughly consistent
assumes that the weight on the ATF sheet was a net weight, an
assumption that makes little sense, rather than a gross weight,
which by all indications it was. The state lab, although it did
not weigh all of the heroin, did weigh the contents of one of the
six small bags of it, and found the net weight, i.e., the weight of
the drug itself without the packaging, to be 0.08 grams. Aitoro
assumes the weight of the other five bags to be roughly the same,
leaving an estimated net weight of about 0.48 grams. It is this
net weight that Aitoro says is approximately equal to the 0.9-gram
weight reported on the ATF inventory. But the 0.9-gram figure
listed on the ATF document purports to be the weight of the heroin
in its packaging, and the agent who took the inventory testified at
trial that he weighed the heroin while it was still in the glassine
bags. The 0.9-gram weight thus bears comparison not to a
hypothetical 0.48-gram net weight for the heroin alone, but to the
4.91-gram weight recorded on the state lab drug receipt. The
greater disparity between the ATF and state lab figures with
respect to the heroin undermines Aitoro's argument, because a
consistently wide disparity between the state and ATF figures
suggests not tampering, but an imprecise or malfunctioning scale.

-19-
this conclusion, there was testimony at trial and at sentencing

stating that the state lab scale was calibrated daily, monthly, and

annually and was accurate to within a fraction of a milligram at

the time the drugs here were weighed. There was also testimony

that the scale used by the ATF was an un-calibrated scale used by

agents in the field, and that it was roughly handled, being thrown

in car trunks and used by close to a hundred different agents. Its

purpose, the testifying agent suggested, was not to produce drug

weights for evidentiary purposes but to provide a rough

bureaucratic accounting of drugs seized. The agent noted that the

ATF's practice on seizing drugs was to send them out to a state or

federal lab for official weighing and analysis, and that in fact

the only reason the ATF had begun weighing drugs at all was because

the agency had started to use a computer system that required entry

of a drug-weight figure before it would print out a computerized

tag to be affixed to seized packages. The inference is that the

ATF was not concerned with producing an accurate weight as much as

with generating a number that it could enter into its computer. On

balance, it was reasonable for the district court to conclude that

it was more likely than not that the cocaine weighed by the state

lab was the cocaine seized from Aitoro, and that the state lab

weight was accurate.12

12
Aitoro's subsidiary argument challenges the sufficiency of
the proof offered of the chain of custody of the drugs between
seizure and analysis. In order to meet its burden of demonstrating

-20-
D. Drug Quantity as an Element

Aitoro makes another challenge to the drug quantity

finding, one of potentially greater consequence but of limited

relevance to the case at hand. Drug quantity was, as we have

discussed, determined by the judge at sentencing and was not proved

to a jury or admitted by Aitoro. In addition to being vital to

calculating a recommended sentence under the Sentencing Guidelines,

drug quantity determinations can bear on a defendant's sentence

under the drug-possession statute itself. See 21 U.S.C. § 841.

Aitoro challenges our decision in United States v. Goodine, 326

F.3d 26 (1st Cir. 2003), in which we decided that the drug quantity

determinations that drive the sentencing restrictions under § 841

may be made by a judge, rather than a jury, because the various

threshold drug quantities are not elements that distinguish between

different offenses. Goodine's approach has been rejected

drug quantity, the government must perforce make a satisfactory
showing of the identity of the drugs weighed with the drugs seized.
Where there is some indication that the drugs weighed may not be
the drugs seized, the government will have to go farther to
demonstrate a chain of custody proving identity. Cf. United States
v. Ladd, 885 F.2d 954, 956 (1st Cir. 1989). Where there is no such
indication, credible testimony that the drugs were in official
hands at all times will generally be enough to sustain a sentencing
court's findings. Here, the descriptions of the drugs and the drug
packaging on the ATF receipt were consistent with the state lab's
descriptions of the drugs it received, and there was testimony at
trial by an agent named Mark DeSantis that the drugs seized by the
ATF were the same drugs as were turned over to the state lab. That
was enough to give the court reason to believe the drugs weighed
were the drugs seized.

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elsewhere, see, e.g., United States v. Gonzalez, 420 F.3d 111 (2d

Cir. 2005); United States v. Velasco-Heredia, 319 F.3d 1080 (9th

Cir. 2003); see also United States v. Vazquez, 271 F.3d 93, 107-26

(3d Cir. 2001) (en banc) (Becker, J., concurring), but it is the

law of this circuit.

While the general rule is that we are "bound by prior

panel decisions directly on point," Charlesbank Equity Fund II v.

Blinds To Go, Inc., 370 F.3d 151, 160 (1st Cir. 2004) (citing

Jusino v. Zayas, 875 F.2d 986, 993 (1st Cir. 1989)), Aitoro invokes

our authority to reconsider a prior panel decision in light of

intervening controlling authority. See United States v. Rodriguez,

311 F.3d 435, 439 (1st Cir. 2002). Specifically, he argues that

the decision in Booker undercut our earlier decision in Goodine.

In an appropriate case, we could consider this argument, but

Aitoro's sentence was not imposed subject to a mandatory minimum,

and because the mandatory minimum that would have applied was 60

months, and Aitoro received a sentence of 100 months, the chances

are slim that on remand Aitoro's sentence will turn on whether or

not a § 841 minimum may be lawfully applied. For these reasons, we

need not address the Goodine question here.

One thing that is abundantly clear, however, is the error

of Aitoro's suggestion that "even when not used to invoke a

mandatory minimum sentence, drug quantity is an element of the

offense which must be established by proof beyond a reasonable

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doubt before it is employed for sentencing purposes." Aitoro

apparently seeks a declaration that, because drug quantity, when

used to determine a defendant's sentence under the Sentencing

Guidelines, can make a large difference in a defendant's sentence,

it must be proved to a jury beyond a reasonable doubt. We have

recently rejected this view, see United States v. Yeje-Cabrera, 430

F.3d 1, 23 (1st Cir. 2005), and Aitoro's argument as to this point

is foreclosed.

E. Future Drug Testing

Finally, Aitoro challenges one of the terms of supervised

release imposed by the court. He contends that the district court

ought to have imposed a limit on the number of drug tests that his

probation officer will be permitted to require of him during his

term of supervised release. It is recognized error not to impose

such a limit, leaving the probation officer's discretion unbounded.

See United States v. Melendez-Santana, 353 F.3d 93, 102-06 (1st

Cir. 2003); 18 U.S.C. § 3583(d). Aitoro did not raise the issue

below, however, and we do not correct unpreserved Melendez-Santana

errors on appeal. See United States v. Padilla, 415 F.3d 211 (1st

Cir. 2005) (en banc). We do note that the "standard conditions"

worksheet the district court used for specifying the conditions of

supervised release lists as a condition "one drug test within 15

days of release from imprisonment and at least two periodic drug

tests thereafter, as directed by the probation officer," and offers

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no place for a judge to enter a maximum number of tests as required

by Melendez-Santana.

While the Melendez-Santana error here does not contribute

to our decision to remand, we do find it surprising that five

months after Melendez-Santana was decided, the district court was

provided a sentencing form whose use, when filled out as intended,

guaranteed a violation of the supervised release statute. In

resentencing in this case, and, if it has not already begun to do

so, in sentencing in future cases, the district court should use a

sentencing form that implements § 3583(d) as required by Melendez-

Santana.

III.

For the foregoing reasons, the denial of Aitoro's motion

to suppress is affirmed, his sentence is vacated, and the case is

remanded to the district court for resentencing.

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