United States v. Silva ( 1995 )

USCA1 Opinion

          March 27, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 94-1915

                                    UNITED STATES,

                                      Appellee,

                                          v.

                     JORGE SILVA, A/K/A VICTOR MALDONADO-GARCIA,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                           Selya and Boudin, Circuit Judge.
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            Eileen M. Donoghue on brief for appellant.
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            Donald K. Stern, United States  Attorney, and Carole  S. Schwartz,
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        Assistant United States Attorney, on brief for appellee.


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                      Per  Curiam.      Appellant,  Jorge Silva,  pleaded
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            guilty  to  charges of  conspiracy  to  possess cocaine  with

            intent to distribute and possession of cocaine with intent to

            distribute.   The district court, after a  lengthy hearing on

            the issue of  the amount  of cocaine that  appellant knew  or

            reasonably foresaw was involved  in the relevant transaction,

            found  that the full nine  kilograms was attributable to him.

            Accordingly,  on  July 21,  1994,  it  imposed the  mandatory

            minimum ten-year prison sentence  prescribed by statute.  See
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            21 U.S.C.    841(b)(1)(A)(ii).  Appellant's  sole argument on

            appeal is that  it was clear error for the  district court to

            find that  the government  proved by  a preponderance  of the

            evidence that  Silva knew or reasonably foresaw  that five or

            more kilograms  of cocaine  were involved in  the transaction

            underlying the  possession charge.  Appellant  urges that his

            sentence be recalculated based upon a quantity of one-to-four

            kilograms of cocaine.  We affirm.

                 The statements and findings by the district court at the

            sentencing hearing, as well  as the parties' briefs,  seem to

            assume that only the  amount of drugs that appellant  knew or

            reasonably foresaw  as being involved  in his conduct  can be

            attributed to him for  purposes of imposing mandatory minimum

            sentence.   See United States  v. Ekwunoh, 813  F. Supp. 168,
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            178 (E.D.N.Y.  1993), vacated on  other grounds, 12  F.3d 368
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            (2d Cir. 1994).  Although that argument has been presented to



















            this  court, we  have not  yet been  required to  resolve the

            issue.   See United States v. Ortiz, 23 F.3d 21, 28 (1st Cir.
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            1994); United States  v. Beasley,  12 F.3d 280, 285 (1st Cir.
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            1993).   Nor are we required to  resolve it here.  The record

            clearly supports a finding by a preponderance of the evidence

            that appellant reasonably foresaw  the quantity of drugs upon

            which his sentence was based.

                 "For sentencing purposes, the government must prove drug

            quantities by a preponderance of the evidence." United States
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            v.  Sepulveda, 15  F.3d  1161, 1198  (1st  Cir. 1993).    The
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            district  court's  judgment  as  to  the  quantity  of  drugs

            reasonably foreseen  by the  appellant will not  be disturbed

            unless  clearly erroneous.  See, e.g., United States v. De La
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            Cruz, 996 F.2d 1307,  1314 (1st Cir.), cert. denied,  __ U.S.
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            __, 114 S.Ct. 356  (1993).  Given that the  mandatory minimum

            sentence  applies so long as quantities of five grams or more

            are  involved, this  court  need only  determine whether  the

            court clearly  erred in attributing that amount of cocaine to

            Silva. See Sepulveda, 15 F.3d at 1200.
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                 The  record  supports  the   court's  finding  that  the

            government  proved by  a preponderance  of the  evidence that

            Silva knew or reasonably foresaw that the drug transaction in

            which  he participated  involved  five or  more kilograms  of

            cocaine.   Both appellant and  the government  relied at  the

            sentencing hearing  on transcripts  from the  trial of a  co-



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            defendant,  Jaime  Corrales, at  which  the  sentencing judge

            presided.    Those  transcripts  demonstrate  that Silva  was

            responsible  for  making  deliveries  of the  drugs  for  the

            conspirators. They further show that at some point during the

            transaction, Silva  brought the bag containing nine kilograms

            of cocaine to  the owner of the  cocaine. From the weight  of

            the  bag alone,  he could  have reasonably  foreseen  that it

            contained  five or  more  kilogramos of  cocaine. See  United
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            States  v. Ortiz, 23 F.3d at 28 (concluding that "there would
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            be no basis for  finding that defendant did not  foresee that

            at least  five  kilograms of  cocaine  were involved  in  his

            crimes" where  the bags containing the  cocaine "were visibly

            heavy"   and  actually  contained  twenty-five  kilograms  of

            cocaine);  United   States  v.   Beasley,  12  F.3d   at  284
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            (concluding   that  record   supported  finding   of  "actual

            knowledge"  that transaction involved  more than one kilogram

            of heroin  where  the suitcase  in fact  contained more  than

            three  kilograms  and defendant  had  lifted  and shaken  the

            suitcase.)       There being no clear  error in the  district

            court's finding  with respect  to drug  quantity, appellant's

            sentence is affirmed.   See 1st Cir. Loc. R. 27.1.
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