United States v. Elwell ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1621
UNITED STATES,
Appellee,
v.
DAVID ELWELL,
Defendant, Appellant.
No. 91-1674
UNITED STATES,
Appellee,
v.
HOBART WILLIS,
Defendant, Appellant.
No. 91-1742
UNITED STATES,
Appellee,
v.
RICHARD MORETTO,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on January 20, 1993, is
amended to delete, on page 21, line 10, the sentence which reads:
"Further, Elwell himself had been
recorded as advising Polito in the fall
of 1988 that Polito still owed twenty-
four something, a figure that in the
context of this case suggests prior
deliveries of $24,000 worth of cocaine."
January 20, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1621
UNITED STATES,
Appellee,
v.
DAVID ELWELL,
Defendant, Appellant.
No. 91-1674
UNITED STATES,
Appellee,
v.
HOBART WILLIS,
Defendant, Appellant.
No. 91-1742
UNITED STATES,
Appellee,
v.
RICHARD MORETTO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Stephen J. Weymouth with whom Balliro, Mondano & Balliro, P.C.
was on brief for appellant David Elwell.
Dana Alan Curhan with whom Barry M. Haight and Buckley, Haight,
Muldoon, Jubinville & Gilligan were on brief for appellant Hobart
Willis.
James J. Cipoletta with whom Cipoletta & Ogus was on brief for
appellant Richard Moretto.
George W. Vien, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, and Heidi E. Brieger,
Assistant United States Attorney, were on brief for appellee.
BOUDIN, Circuit Judge. The grand jury indicted a number
of persons for conspiring to distribute cocaine and for
related offenses. Several of those indicted pled guilty but
three were tried jointly and convicted. The appeal of one
of those convicted is decided today in a separate decision.
United States v. Moran, No. 91-1772. In this decision, we
address the appeals of the other two defendants who were
convicted at trial, together with the appeal of another
defendant who pleaded guilty but contests his sentence. In
two of the three cases we affirm; and in one we remand on a
single issue for resentencing.
I.
We begin with a brief outline of the facts and history
of the case, reserving additional detail for our discussion
of individual claims of error. The evidence submitted to the
jury is, of course, to be viewed in the light most favorable
to the verdict, the jury being accorded great latitude in
resolving credibility and drawing reasonable inferences.
United States v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st
Cir.), cert. denied, 492 U.S. 910 (1989).
On August 9, 1990, the grand jury indicted the three
appellants now in this court (Richard Moretto, David Elwell,
and Hobart Willis), as well as six other persons, for
conspiracy to distribute cocaine. 21 U.S.C. 846. Other
countsin the indictment chargedvarious of the defendants with
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related crimes. Willis and several others pled guilty,
Willis pleading to conspiracy and five counts of distribution
under 21 U.S.C. 841. After trial the jury convicted
Moretto, Elwell, and George Moran (whose appeal has been
separately decided) of conspiracy. In addition, Moretto was
found guilty of witness intimidation, 18 U.S.C. 1512, and
Elwell of three counts of distribution, 21 U.S.C. 841, and
one of filing a false tax return. 26 U.S.C. 7206.
The critical testimony at trial, except in the case of
Moran, came primarily from Mark Polito, whose account was
bolstered by police testimony and tape recordings. He
testified that during the spring of 1988 he purchased ounce
quantities of cocaine every week or two from Moretto.
Because Moretto was scheduled to report to prison for a prior
offense, Moretto--according to Polito's testimony--arranged a
meeting between Polito and Willis, "the man he [Moretto] got
his stuff from." At the meeting Willis agreed to introduce
Polito to the distributor who managed Willis' "northern
territory." A few days later Willis introduced Polito to
Elwell and for the next few months Elwell supplied Polito
with cocaine at the same price previously charged by Moretto.
Polito eventually fell behind in payments and, under
pressure for payment exerted by Willis and Elwell, Polito
began to cooperate secretly with law enforcement authorities.
Now buying drugs with government money, Polito recorded
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conversations with Elwell and, on one occasion, brought a DEA
undercover agent to a meeting with Elwell. During a later
sale, Elwell told Polito that Willis wanted Polito to
"remember" Moretto at Christmas, Moretto then being in
prison. This reminder was repeated at a later meeting.
Eventually Elwell became suspicious of Polito, ceased to deal
with him and in 1989 Willis began to supply Polito directly.
The last reported transaction occurred on February 16, 1989,
when Polito paid Willis part of the money still owed to
Elwell for prior purchases.
Moretto was released from prison on June 5, 1990. On
June 11 and 12, 1990, three telephone calls occurred between
Moretto and Polito, which Polito secretly recorded. Those
calls, described below, formed the basis of the obstruction
count against Moretto. Nothing pertinent to the charges was
proved at trial to have occurred after June 12. In August
1990, the indictment was returned.
Following Willis' guilty plea and the trial of Elwell,
Moretto and Moran, the defendants were sentenced. Willis
and Moretto were found to be career offenders under the
Sentencing Guidelines and each was sentenced to 210 months in
prison. Elwell was sentenced to 78 months. The present
appeals followed.
-7-
II.
Moretto's main argument on appeal is that the evidence
of his adherence to the conspiracy charged in the indictment
was too weak to permit a reasonable jury to convict. He
further argues that, at most, the evidence showed several
conspiracies rather than the single one charged in the
indictment, and he asserts that this supposed variance
between the conspiracy charged and any conspiracy proved was
prejudicial. We need not treat the prejudice argument
separately because we conclude that the evidence adequately,
if not amply, supported the government's claim of a single
conspiracy involving Willis and others in which Moretto
participated.
Moretto does not dispute that Willis directed a cocaine
ring but, carving his own role into phases, he seeks to
distance himself from the ring. Moretto's repeated sales of
cocaine to Polito in the first part of 1988, which were amply
proved, are claimed by Moretto to fall outside the ambit of
the Willis ring.1 Moretto then argues that he could not
1Moretto places stress upon a statement of the
prosecutor, made to the judge in a pretrial conference, that
the conspiracy charged by the government began in March 1988
when Moretto introduced Polito to Willis. Although the
prosecutor did make such a statement--seemingly a slip of the
tongue--the government's actual theory of the conspiracy was
that it reached back to embrace Moretto's earlier sales, as
the prosecutor made fairly clear at the bottom of the same
transcript page and even clearer two pages later. There,
responding to the judge's question ("The Government's theory
is that there was some association between them [Moretto and
-8-
have participated in the ring from March 1988 to June 1990
since he was in prison. As to the conversations with Polito
on June 11-12, 1990, Moretto says that--even assuming them to
be obstructive--they occurred well after the last proved
transaction of Willis and Polito on February 16, 1989, and
therefore occurred after the conspiracy.
The jury was entitled to link these supposedly separate
events together with certain connecting facts that Moretto
omits. The drug sales he made to Polito during early l988
were, the jury could have concluded, based on supplies
furnished by Willis; Moretto, according to Polito's
testimony, said that Willis was "the man he got his stuff
from." The jury could also have thought that the Willis-
Moretto relationship was a continuing one since, when Moretto
was forced to report to prison, he introduced Willis as a
substitute supplier. Willis then arranged for further sales
to Polito at Moretto's original price. One act, after all,
can take color from others, and drawing such inferences is
the jury's task.
During Moretto's first year in prison there is ample
evidence of continued sales by Elwell and Willis to Polito.
Moretto, although in prison, was not entirely out of the
picture: Elwell twice told Polito that Willis wanted him to
Willis] prior to that introduction [of Polito to Willis]),
the prosecutor stated, "Yes, from Moretto up the ladder . .
. ."
-9-
"remember" or not forget Moretto at Christmas. While various
inferences can be drawn from these reminders, the jury could
have believed that they reinforced Moretto's connection with
the ongoing conspiracy (even assuming, as the government
seems to do in its brief, that Moretto was not a participant
while imprisoned).2 Specifically, the evidence increases
the likelihood, however slightly, that Moretto was once a
conspirator and might rejoin the conspiracy after prison.
The jury could then have concluded that, in making the
telephone calls to Polito in June 1990, Moretto did rejoin
the conspiracy. It is true that the time gap between the
last proved Willis ring transaction in February 1989 and the
calls in June 1990 is substantial. But the jury was not
obliged to believe that a well organized drug ring, which
enjoyed a "northern territory" and remembered a former
associate at Christmas, had suddenly expired. When this same
former foot soldier is discovered in June 1990 threatening a
witness, who is believed likely to testify to the ring's
2The government's brief in fact points to evidence that
Moretto while in prison telephoned Polito's mother to
threaten Polito for failing to pay his drug-purchasing debts.
That evidence may not have been admissible because of its
hearsay character--apparently the initial source of the
evidence was Polito's mother, who did not testify. However,
this evidence is not challenged on this appeal, and the
remaining evidence against Moretto is adequate even if this
evidence, largely embodied in a single sentence of Polito's
testimony, is ignored.
-10-
activities, the jury might well have concluded that the
conspiracy was ongoing and the soldier had just reenlisted.
Grunewald v. United States, 353 U.S. 391 (1957),
heavily relied on by Moretto, does not forbid this inference.
It dealt with entirely different facts--specifically, a
conspiracy that had achieved its single objective well before
the acts of concealment that were claimed to extend it for
purposes of the statute of limitations.3 Perhaps more in
point is the statement in United States v. Mayes, 512 F.2d
637, 642 (6th Cir.), cert. denied, 422 U.S. 1008 (1975) that
"[w]here a conspiracy contemplates a continuity of purpose
and a continued performance of acts, it is presumed to exist
until there has been an affirmative showing that it has
terminated . . . ." In all events, the jury in this case was
certainly entitled to infer from all of the circumstances--
apparent size of the drug ring, its duration, Moretto's
threats, and the threats' references to others--that the ring
continued and Moretto rejoined it.
Separately, Moretto claims that the evidence did not
support the jury's guilty verdict against him on the charge
of witness intimidation under 18 U.S.C. 1512(b). That
statute in pertinent part forbids any act of "intimidation"
3Similarly, in United States v. Serrano, 870 F.2d 1 (1st
Cir. 1989), statements sought to be introduced under the co-
conspirator exception to the hearsay rule occurred after the
fraudulent scheme had "collapsed."
-11-
done with intent to induce anyone to "withhold testimony"
from a grand jury or other official proceeding. The three
telephone conversations in this case, recorded by Polito and
played to the jury, are replete with statements by Moretto
that the jury could reasonably have found to be intimidating
in both nature and intent. A brief sampling of Moretto's
statements, omitting some rejoinders by Polito, conveys their
flavor:
"I just have a message . . . . You have
one chance to hear this and then its
gonna be somtin' that you never want to
hear and it's like a hairline fracture
away from it. People knew what's going
on."
"Mark, we got friends all over the place,
right? DEA, state troopers, everything
. . . . [Y]ou don't seem to understand
that everybody knows that you went and
talked [to law enforcement agents] . . .
. I got to call these people back . . .
. [T]hey just want some assurance that
nobody's going to no Grand Jury . . . ."
The heart of Moretto's appeal on this count is that
during the first of the conversations on June 12, Polito
asked Moretto if Moretto was threatening him and Moretto
responded: "No, I'm not. I am not. I'm relaying indirect
messages. I'm not threatening anybody. I'm--I would never
hurt nobody. I'm not that kind of person." The jury could
reasonably view this statement, lodged among many veiled
threats, as a boilerplate disclaimer, coupled with the
intimation that others ("I got to call these people back")
-12-
would inflict the harm if Moretto's warning were ignored. If
anything, the statement enhances the sinister character of
the conversation.4
III.
Willis, Elwell and Moretto each appeals his sentence.
We consider their respective claims in that order.
Willis. Willis was sentenced as a career offender under
U.S.S.G. 4B1.1. That provision provides that a defendant
is placed in the highest criminal history category and that
specified minimum offense levels apply, if three conditions
are met: first, the defendant must be at least 18 years old
at the time of the instant offense; second, the offense must
be a felony that is either a crime of violence or a drug
offense; and third, the defendant must have "two prior felony
convictions" for such offenses. It is undisputed that Willis
meets the age condition, that the instant conviction is a
drug offense and that he had five prior convictions, one
state and four federal, for five bank robberies committed on
different dates during a brief period in 1968.
Willis argued unsuccessfully at sentencing that the
prior bank robberies should be treated as a single felony
4Moretto's brief adopts by cross-reference Moran's
argument that the trial judge gave a supplementary
instruction that invited the jury to ignore the conspiracy
charged in the indictment and convict of a different
conspiracy. That argument is considered and rejected in our
separate opinion in Moran.
-13-
because the definitions provision of U.S.S.G. 4B (
4B1.2(3)) provides in part that "``two prior felony
convictions' means . . . [that the convictions were for a
crime of violence or drug offense and that] at least two of
the . . . convictions are counted separately under the
provisions of 4A1.1(a), (b), or (c)." This latter
provision, designed to determine the number and length of
"prior sentence[s]" in order to compute a defendant's
criminal history category under U.S.S.G. 4A, in turn
provides in a related definition that "[p]rior sentences
imposed in related cases are to be treated as one sentence
for purposes of 4A1.1(a), (b) and (c)." U.S.S.G.
4A1.2(a)(2) (emphasis added). The commentary to that
section, id., app. note 3, pertinently provides:
[P]rior sentences are considered related
only if they resulted from offenses that
(1) occurred on the same occasion, (2)
were part of a common scheme or plan, or
(3) were consolidated for trial or
sentencing.
Based on this language Willis argued at sentencing that
his five bank robberies were part of a common plan to rob
banks and, in any event, that the sentences imposed--although
not formally in consolidated cases--were concurrent
sentences, part of the same bargain, and thus in
"constructively" consolidated cases. Willis further
requested that, if his proffer of these facts was not
accepted, he be afforded an evidentiary hearing and
-14-
opportunity for fellow bank robbers to testify to their
common plan and for a former attorney to show that the
sentences were concurrent and part of the same plea bargain.
The district court declined to hold an evidentiary hearing
and concluded that the bank robbery convictions were separate
crimes.
At first blush, it might seem unlikely that the
Sentencing Commission intended a defendant to escape career
offender status, in the teeth of two prior convictions for
different bank robberies at different times and places,
simply because those prior robberies were assertedly linked
by a further felony, namely, an overarching conspiracy to rob
banks that could literally be called a "common scheme or
plan." Of course, two crimes might be so closely related--
for example, an assault committed in the course of a bank
robbery--that it would disserve the plain purpose of a
"repeat offender" statute to treat convictions for each as
two prior convictions. But five separate bank robberies,
committed with the opportunity to pause and reflect between
them and memorialized by convictions, are surely what
Congress had in mind as identifying a career offender. 28
U.S.C. 994(h). One might therefore doubt, at least
initially, whether the Commission was aware that the contrary
result would follow from its commentary language whenever the
bank robberies were part of a common plan.
-15-
If we were satisfied that the outcome departed from
Commission intent, we might disregard the literal language of
the commentary and treat as a single conviction only those
convictions so closely related in time and function that
separate treatment would disserve the purpose of the career
offender provision. Yet a broader perspective suggests that
the Commission, in defining related convictions, did mean to
adopt binding "rules of thumb," such as this one, as well as
the even more mechanical rule that convictions for entirely
separate crimes should be treated as one if they happen to be
consolidated for trial or sentence. U.S.S.G. 4A1.2(a)(2).
In fact, the Commission in the same paragraph recognized that
these rules of thumb could understate criminal history, and
it said that the remedy in such cases was for the sentencing
judge to employ an upward departure. Id.5
To conclude that the Commission intended the apparent
result of its literal language does not resolve the matter
since we might still decide that a rule of thumb that
produces such a result is unfaithful to the guideline and to
the career offender statute that lies behind it. But
5In the commentary paragraph containing both the "single
scheme or plan" and the "consolidated for trial or
sentencing" provisions, the Commission continued: "The court
should be aware that there may be instances in which this
definition is overly broad and will result in [an inadequate]
criminal history score . . . . In such circumstances, an
upward departure may be warranted." U.S.S.G. 4A1.2, app.
note 3.
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Congress in 28 U.S.C. 994(h) authorized the Commission to
develop guidelines to assure that career offenders receive
high sentences; and we are loath to hold that the mechanism
developed by the Commission (and submitted to Congress) falls
outside that authority, even if there is a Rube Goldberg
aspect to the use of overbroad rules of thumb tempered by the
power to depart. The Second Circuit has treated the "common
scheme or plan" language as binding, while eloquently urging
the Commission to reexamine its "related cases" commentary.
United States Butler, 970 F.2d 1017 (2d Cir.), cert. denied,
113 S. Ct. 480 (1992).
Once we decide that the "common scheme or plan"
definition is both intentional and valid, it follows that the
"common scheme or plan" language should be given its ordinary
meaning. This same language is used in Fed. R. Crim P. 8 (to
determine joinder) and there is no doubt that in that context
a conspiracy to rob banks would constitute a common scheme or
plan. Willis offered to call fellow bank robbers to confirm
that his robberies were part of the same conspiracy, and
there is nothing implausible about his proffer, however odd
it might seem to conduct this inquiry. Other circuits have
required such evidentiary hearings which, not surprisingly,
tend to produce findings that the multiple convictions were
not part of a common scheme or plan. E.g., United States v.
Chartier, 970 F.2d 1009 (2d Cir. 1992).
-17-
For the reasons indicated, we feel constrained to accept
the guideline commentary, to conclude that the proffer could
not be ignored, and thus to remand Willis' case for
resentencing.6 We do not, however, think that the district
court is required to hold an evidentiary hearing if the court
concludes that it would impose the same sentence even without
the "career offender" label. The guideline commentary itself
asserts that the rule of thumb here invoked by Willis is
overinclusive and invites judges to depart upward where the
rule of thumb operates to understate criminal history.
Accordingly, the requirements for departure are satisfied if
the judge supportably concludes that--even assuming the truth
of Willis' proffer--five prior bank robberies, united by a
conspiracy to rob banks, makes Willis deserving of a sentence
similar to that he would receive if he were classified as a
career offender. U.S.S.G. 5K2.0.
Whether or not the outcome proves to be the same for
Willis, it is important for future cases that the integrity
of the guideline regime be preserved. Under our reading of
the guideline commentary, the district court may not classify
6The government says that the district court here
"found" that there was no common scheme or plan and it says
correctly that there is no automatic requirement of an
evidentiary hearing for every contested issue. But in this
case, Willis' proffer is not implausible on its face and
there was apparently no other evidence about the bank
robberies. As we read the transcript, the district court's
"finding" actually derived from a narrowing interpretation of
the guideline language.
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Willis as a career offender, assuming the truth of his
proffer proposing to show a common scheme or plan; but we
repeat (without prejudging the facts of this case) that the
district court does have authority to depart upward, subject
to appellate review. 18 U.S.C. 3742(e)(3). The net effect
is to increase the range of discretion of the district judge
in these situations, which may be just what the Commission
intended. As we have noted, an evidentiary hearing is not
automatically required in cases like this one--not because
the judge can "find" no common scheme or plan in the face of
a proffer like this one and without a hearing, but rather
because the judge may depart rather readily even if such a
scheme or plan is assumed.7
Although Willis' case is to be remanded, we consider his
other claims of error, both for the guidance of the district
court and to reduce the need for further appeals.
Specifically, Willis argues that he was wrongly denied an
evidentiary hearing on two issues important to his
sentencing, namely, the amount of cocaine for which he was
7We reject Willis' further argument that the bank
robbery convictions, even though not formally consolidated,
should be deemed "constructively" consolidated because of the
alleged plea bargain and concurrent sentences. The fact is
that the cases were not consolidated. Whatever anomalies
result from the accident of consolidation vel non, the
situation is not going to be improved by treating
unconsolidated cases as "constructively" consolidated,
thereby broadening beyond its language an already overbroad
rule of thumb. See United States v. Rivers, 929 F.2d 136(4th Cir.), cert. denied, 112 S. Ct. 431 (1991).
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responsible and his leadership status. We think the district
court properly resolved these matters.
At the sentencing, the judge determined that Willis was
responsible for 2.2 kilos, resulting in a base level of 28,
U.S.S.G. 2D1.1(a)(3), (c)(8), and was a "leader"
warranting an upward adjustment. U.S.S.G. 3B1.1. However,
instead of adopting the resulting offense level, the judge
ruled that Willis was a career offender, making him subject
(in light of the maximum sentence to which he was liable) to
a base level of 32. U.S.S.G. 4B1.1 The court reduced
this figure by 2 levels for acceptance of responsibility.
The court then sentenced Willis at the top of the range
provided by the sentencing table for a criminal with an
offense level of 30 and a criminal history category of VI
(which is automatic under U.S.S.G. 4B1.1 for a career
offender).
In finding Willis to be a leader and computing the
amount of cocaine, the judge relied upon information adduced
at the trial of Willis' co-defendants and on other government
tape recordings not introduced at the trial but made
available for the sentencing. On appeal Willis insists that
he was entitled to an evidentiary hearing on the amount of
cocaine. Neither the amount of cocaine nor the leadership
finding affected the guideline range adopted by the district
court since the career offender guideline superseded the
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"otherwise applicable offense level." U.S.S.G. 4B1.1.
Nevertheless, because the leadership role of Willis and the
amounts of cocaine handled by his ring might well be
pertinent to the district court's sentencing decision on
remand, we address Willis' objections.
The law concerning the need for evidentiary hearings has
been left primarily to development through individual
decisions, which themselves reflect the tension between two
attitudes: the history of almost unreviewable trial judge
discretion in sentencing and the present specificity of the
guidelines. See U.S.S.G. 6A1.3. Here, however, there is
no need for any lengthy discourse on sentencing hearings. A
prima facie case existed, based on the presentence report and
the evidence adduced at the co-defendants' trial, to regard
Willis as playing a leading role in a ring dealing in
substantial quantities of cocaine. At no point did Willis
ever specify or proffer evidence that would be adduced in an
evidentiary hearing to negate the amounts or Willis' role as
leader. Under these circumstances, it is patent that no
hearing was required. United States v. Shattuck, 961 F.2d
1012, 1015 (1st Cir. 1992). Lastly, Willis argues that
because the prior convictions were used to trigger the career
offender guideline, the government had to file a notice
specifying the prior convictions before Willis' guilty plea
in this case. 21 U.S.C. 851 (prior notice is a condition
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of "increased punishment"). Willis' argument that section
851 applies to guideline increases, as well as statutory
maximums, was rejected by this court in United States v.
Sanchez, 917 F.2d 607, 616 (1st Cir.), cert. denied, 111 S.
Ct. 1625 (1991). We decline the invitation to reexamine that
decision.
Elwell. Elwell was convicted of conspiracy, two
distribution counts, and wilfully filing a false tax return,
and he was sentenced to 78 months imprisonment. The sentence
was the minimum allowed under the guideline range in light of
the finding that he had distributed at least 500 grams.
U.S.S.G. 2D1.1(a)(3), (c)(3).
Elwell first contests the finding that he did distribute
at least 500 grams. He admits the distribution to Polito of
about 3 ounces (approximately 84 grams) for which he was
convicted; indeed, Elwell admitted at sentencing that he had
sold more to Polito without specifying a number. At trial
Polito testified that, apart from the 3 ounces, Elwell had
delivered "18, maybe 20" ounces of cocaine to Polito during
the summer of 1988. The judge accepted this evidence despite
Elwell's denial at the sentencing hearing that he had sold so
large a quantity. Even the low-end figure of 18 ounces is
504 grams, exceeding the guideline minimum of 500 grams.
The critical facts by which a guideline range is fixed
must be proved by a preponderance of the evidence, e.g.,
-22-
United States v. Blanco, 888 F.2d 907, 909 (1st Cir. 1989).
While inviting us to raise or at least stiffen this standard,
Elwell's main argument is that Polito's estimate was too
casual to support the drastic increase in sentence that
results for distributing 18 rather than 3 ounces. He
stresses the fact that Polito was himself a user during this
period and admitted to hazy recollections or mistakes in
other testimony. Combining these arguments, he argues on
appeal that the judge's determination was clearly erroneous,
the standard properly applied on review. United States v.
Aymelek, 926 F.2d 64, 69 (1st Cir. 1991).
We disagree. The district court, which heard Polito's
testimony at trial and Elwell's testimony at the sentencing
hearing, was entitled to choose between them. The time
period over which Elwell supplied Polito and the size of
Polito's purchases were also consistent with the 18-20 ounce
figure. Against this backdrop and in light of the standard
of review, we find no error. This conclusion also disposes
of Elwell's claim that the larger ounce figure was wrongly
used in determining the amount of unreported income in
sentencing under the tax count.
Elwell objects lastly to the special condition of
supervised release that requires him to submit to random drug
testing, as well as drug and alcohol treatment, as directed
by the Probation Service. Elwell objects that his use of
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drugs (cocaine and previously amphetamines) lay 5 years or
more in the past, that nothing else supports this condition,
and that supervised release conditions should "involve[] no
greater deprivation of liberty than necessary . . . ." 18
U.S.C. 3583(d)(2). We believe that the drug testing and
treatment requirement--if deemed necessary by the Probation
Service--lay well within the district court's discretion,
given Elwell's past use and past dealing in drugs. As to
alcohol, the failure of Elwell to raise this objection at
sentencing or by post-trial motion makes it impossible to
assess the district court's reasons for adding in this
condition and, in our view, this failure waived the
objection.
Moretto. Moretto's sentence was based on the district
court's finding that he should be treated as a career
offender. His record showed two state court convictions for
assault and related conduct in October 1987 and February 1990
respectively and a drug conviction for possession with intent
to distribute in March 1988. In the district court, Moretto
argued that the assault convictions were misdemeanors under
state law, but the trial judge found them to qualify as
felonies for guideline purposes. See U.S.S.G. 4B1.2, app.
note 3 (prior felony conviction includes offense punishable
by more than one year imprisonment even if not designated as
a felony).
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On appeal, Moretto asserts that the trial court relied
on the two state assault charges to find two prior
convictions. Moretto then argues that while the October 1987
conviction may be a "prior" felony conviction, the latter
assault conviction in February 1990 occurred after the start
in 1988 of the conspiracy for which he was convicted in this
case. In reply, the government says that this argument is
waived because not made below; that in any event the instant
conspiracy continued after the February 1990 conviction,
making it a prior conviction under the guidelines; and that
the first assault conviction and the drug possession
conviction both remain even if the second assault is
disregarded.
Waivers are occasionally forgiven and the government's
reliance on the March 1988 drug conviction could presumably
be assailed on the same ground that Moretto now offers to
exclude the February 1990 conviction from consideration,
namely, that it occurred after the instant conspiracy began.
But we think the ground is clearly wrong: continued
participation in a conspiracy after a felony conviction
renders that conviction a prior felony conviction. This is
apparent from both the letter and intent of the guidelines,
U.S.S.G. 4B1.2(3)("defendant committed the instant offense
subsequent to sustaining at least two felony convictions . .
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. ."), and thus there was no error in sentencing Moretto as a
career offender.
The judgments are affirmed except as to Willis whose
case is remanded for resentencing in accordance with this
opinion.
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