United States v. Herrera Gonzalez ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
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No. 99-2198
UNITED STATES OF AMERICA,
Appellee,
v.
MARCOS HERRERA-GONZALEZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
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Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
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Lenore Glaser and Stern, Shapiro, Weissberg & Garin for appellant.
Donald K. Stern, United States Attorney, and Cherie L. Krigsman,
Assistant U.S. Attorney, for appellee.
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April 14, 2000
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LYNCH, Circuit Judge. In pleading guilty to conspiracy
to distribute a controlled substance and distribution of a
controlled substance, see 21 U.S.C. §§ 841(a)(1), 846, defendant
Herrera-Gonzalez admitted he was part of a cocaine distribution
conspiracy but denied that his conspiracy included any agreement
to distribute crack cocaine. After hearing evidence at
sentencing, the district court concluded to the contrary -- that
Herrera could reasonably foresee the sale of crack by his
business partner Celso DelRosario and that Herrera continued to
be part of the conspiracy, despite his trips to the Dominican
Republic. And so the district court attributed the crack to
Herrera and sentenced him to the mandatory minimum for crack
cocaine distribution involving fifty or more grams: 120 months.
See 21 U.S.C. § 841(b)(1)(A)(iii).
The question on appeal is whether the district court's
conclusions were clearly erroneous. See United States v. Elwell,
984 F.2d 1289, 1297-98 (1st Cir. 1993). They were not. The
court found the testimony of the undercover agent credible; that
agent testified that the defendant had offered to sell the agent
crack cocaine for a quoted price and to arrange for the agent to
receive a sample of crack at the next meeting. That sample was
provided at the next meeting (albeit by defendant's business
partner DelRosario). Further, Herrera and DelRosario each said
that either of them could be contacted about placing orders and
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the quality of the merchandise; additionally, DelRosario and
Herrera shared a cell phone and an address. Credibility
determinations were for the district court, see United States v.
Sandoval, 204 F.3d 283, 287 (1st Cir. 2000), and the record amply
justifies the conclusion that the defendant could reasonably
foresee the sale of this crack to defendant. See United States
v. Garcia, 954 F.2d 12, 16-17 (1st Cir. 1992).
The same is true for the district court's conclusion
that Herrera had not withdrawn from the conspiracy before the
sale of the crack to the undercover agent. A lull in activity
does not mean a break with one's business partners in crime. See
United States v. Nason, 9 F.3d 155, 162 (1st Cir. 1993). After
his arrest, Herrera said that he had resumed the drug trade
following his journeying to the Dominican Republic. His own
words, again, provided adequate support for the district court's
conclusion.
Affirmed.
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