United States v. Olea

March 15, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2168
UNITED STATES OF AMERICA,
Appellee,
v.
SANTOS OLEA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Circuit Judge,
Campbell, Senior Circuit Judge,
Stahl, Circuit Judge.
Damon M. D'Ambrosio with whom Martin D. Harris and Martin D.
Harris, Esquire, Ltd. were on brief for appellant.
Margaret E. Curran, Assistant United States Attorney, with whom
Lincoln C. Almond, United States Attorney, and Zechariah Chafee,
Assistant United States Attorney, were on brief for the United States.
March 15, 1993
CAMPBELL, Senior Circuit Judge. This is a
Sentencing Guidelines appeal, in which defendant-appellant
Santos Olea contends that the sentencing court erred by
considering as relevant conduct quantities of cocaine from
sales to which he did not plead guilty, by increasing his
sentence for an obstruction of justice, and by denying his
request to reduce the sentence for acceptance of
responsibility. We affirm the sentence.
I.
Santos Olea was indicted in January 1992 on four
counts: Count I charged that on December 12, 1991, Olea and
codefendant Alberto Gonzalez distributed cocaine in violation
of 21 U.S.C. 841(a)(1); Counts II and III charged that the
same occurred on December 16 and December 20, 1991; Count IV
charged that from a time unknown until December 20, 1991,
Olea and Gonzalez conspired to distribute cocaine in
violation of 21 U.S.C. 846. Olea pleaded guilty in the
United States District Court for the District of Rhode Island
to Count I in return for the dismissal of the three other
counts.1
At sentencing in September 1992, the court heard
testimony from Detective Gannon of the Providence Police
Department, who presented his view of Olea's role in the
1. Codefendant Gonzalez, who is not a party here, was
indicted on the same four counts and pleaded guilty to the
first three.
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three sales. A government informant, "Luis," arranged for
Gannon to make an undercover purchase of cocaine from
codefendants Olea and Gonzalez at a shopping center parking
lot in Providence.
On December 12, 1991, at 11:30 a.m., Olea drove into the
parking lot with Gonzalez in the passenger seat, where they
met with Detective Gannon inside the car. Luis introduced
defendant Santos Olea as "Hector" and Alberto Gonzalez as
"Jose." Gonzalez handed a package of cocaine to Gannon
(weighing approximately 60 grams). Both Olea and Gonzalez
told him to check it out. Gannon gave Gonzalez $1,450 in
cash, who counted it and handed it to Olea who also counted
it. When Gannon said he would want more cocaine later, Olea
said that Gannon could contact him through informant Luis.
On December 16, 1991, Gannon called Luis, who in
turn called "Hector," and the three men spoke on a three-way
telephone line with Luis acting as a Spanish-English
interpreter. Gannon said to Hector that he wanted "the same
thing," to which Hector replied, "I'm busy today. I'll send
my nephew." Hector also said, "Same place, same price, same
quantity." Gannon testified that the voice of "Hector"
sounded like the voice of defendant-appellant Olea, and that,
in his opinion, he was speaking with Olea. Later that day,
codefendant Gonzalez arrived alone at the same parking lot at
the same time in the same car, which was registered to Olea.
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Gonzalez delivered 60.7 grams of cocaine to Gannon for the
same price. Gonzalez then gave Gannon a phone number to call
for more cocaine. The number was listed to the same address
where Olea and Gonzalez apparently lived and were eventually
arrested.
Three more times in the next few days, Gannon spoke
to "Hector" on the telephone in the same manner: Gannon
called Luis, who in turn established a three-way conversation
with "Hector." Luis later told Gannon that he established
the phone contact with "Hector" by dialing the phone number
given to Gannon by Gonzalez. On the third call, Gannon
arranged for a purchase of double the previous quantity of
cocaine. Hector told Gannon that his "nephew" would again
deliver it at the same place. On December 20, Gonzalez again
came to the parking lot in Olea's car and completed the
transaction for 123.65 grams. The total weight of the three
sales was 245.20 grams. Police subsequently arrested Olea
and Gonzalez at the address where the telephone line was
registered.
Prior to sentencing, Olea wrote a letter to the
court apologizing for his involvement in the December 12 drug
sale, to which he had pleaded guilty. However, Olea
proclaimed that he merely gave Gonzalez a ride to the
shopping center on December 12, never touched the money or
drugs, and had nothing else to do with Gonzalez's drug
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dealing. Olea also strenuously denied any connection with or
knowledge of the December 16 and December 20 sales, claiming
that Gonzalez merely borrowed his car without telling Olea
what he was doing. The letter was included in the
presentence report.
After hearing the evidence at the sentencing
hearing and considering Olea's letter and objections to the
presentence report, the court sentenced Olea. The court
judged Detective Gannon to be a credible witness, and so
found that the "Hector" on the telephone was actually
defendant Olea and that Olea had actively participated in all
three drug sales. Based upon the evidence, the court found
that the entire amount of cocaine in the three sales, 245.20
grams, should be considered in calculating Olea's base
offense level. The court also found that Olea's letter to
the court contained material falsehoods regarding his role in
the transactions. After denying any downward adjustment for
a minor role in the offense, increasing the offense level by
two points pursuant to U.S.S.G. 3C1.1 for obstruction of
justice, and denying a two-point reduction for acceptance of
responsibility under U.S.S.G. 3E1.1, the court calculated
the offense level as 22. With criminal history category I,
the applicable sentencing range was 41 to 51 months. The
court sentenced defendant to 42 months incarceration and 5
years supervised release, along with other fines and other
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conditions not relevant here. Olea appeals from his
sentence.
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II.
Appellant contends that the sentencing court erred
in three particulars: (1) it included as relevant conduct
under U.S.S.G. 1B1.3 the quantities of cocaine involved in
the December 16 and December 20 sales; (2) it found that
appellant obstructed justice under U.S.S.G. 3C1.1; and (3)
it denied appellant a reduction in sentence for acceptance of
responsibility under U.S.S.G. 3E1.1.2 All of appellant's
three arguments turn on the extent of his involvement in the
three cocaine sales.
At the sentencing hearing, the court made a factual
finding that appellant was an active participant in the
December 12 sale, and was not a mere driver as he claimed.
The court also found that appellant arranged for the December
16 and 20 sales, even though codefendant Gonzalez actually
delivered the drugs to the parking lot. The court's findings
rested in large part on the testimony of Detective Gannon,
whom the court found to be a credible witness. Assessment of
the credibility of witnesses is for the trier of fact.
United States v. Serrano, 870 F.2d 1, 5 (1st Cir. 1989). We
must accept these findings unless clearly erroneous. United
States v. Gerante, 891 F.2d 364, 368 (1st Cir. 1989).
2. All references to the United States Sentencing Guidelines
are to the November 1, 1991, version, which is the version
applicable to appellant's case.
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We do not find clear error. Detective Gannon
testified that, on December 12, he met with appellant,
identified as "Hector," and that appellant spoke with Gannon
about the quality of the cocaine, counted the money, and told
Gannon to contact him through Luis if he wanted more drugs.
Gannon arranged for each of the two later sales by speaking
on the telephone to someone who answered to the name
"Hector." Each call took place in the same manner, with
Gannon calling Luis, who in turn established a three-way
conference call with "Hector" by dialing the phone number
supplied to Gannon by Gonzalez. Gannon recognized the voice
of "Hector" each time as that of appellant Olea. "Hector"
told Gannon to meet his "nephew" at the "same place." After
such phone calls, the later two sales took place, under
circumstances quite similar to the first sale, with Olea's
codefendant similarly involved, using Olea's car. The court
was under no obligation to accept Olea's denial of
involvement, which it could have found implausible in all the
circumstances.
We turn next to the district court's application of
U.S.S.G. 1B1.3(a),3 concerning relevant conduct. In a
3. Section 1B1.3(a) provides:
Unless otherwise specified, (i) the base
offense level where the guideline
specifies more than one base offense
level, (ii) specific offense
characteristics and (iii) cross
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drug distribution case, quantities of drugs not specified in
the count of conviction are to be included in determining the
offense level if they were part of the same "course of
conduct or part of a common scheme or plan" as the count of
conviction. U.S.S.G. 1B1.3 comment. (backg'd.); United
States v. DiIorio, 948 F.2d 1, 6 (1st Cir. 1991). We believe
that the court reasonably concluded, based on its finding
that appellant had participated in all three drug sales, that
the relevant amount of cocaine here was the total amount sold
in the three separate transactions, the later two
transactions being relevant even though appellant did not
actually appear in person at the delivery of the drugs.
DiIorio, 948 F.2d at 7. Finding no clear error, Gerante, 891
F.2d at 368, we thus reject appellant's challenge to the
court's determination of the relevant conduct.
references in Chapter Two, and (iv)
adjustments in Chapter Three, shall be
determined on the basis of the following:
. . .
(2) solely with respect to offenses
of a character for which
3D1.2(d) [Groups of Closely
Related Counts] would require
grouping of multiple counts,
all acts and omissions
described in subdivisions
(1)(A) and (1)(B) above that
were part of the same course of
conduct or common scheme or
plan as the offense of
conviction;
. . . .
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Appellant also challenges the obstruction of
justice enhancement under U.S.S.G. 3C1.1. Such an
enhancement is authorized, inter alia, when a defendant
provides "materially false information to a judge or
magistrate" or "to a probation officer in respect to a
presentence or other investigation for the court." U.S.S.G.
3C1.1, comment. (n.3(f), (h)). The enhancement was
properly applied here as appellant was supportably found to
have misrepresented two material facts in his letter to the
district court (which also was considered by the probation
officer in preparing the presentence report): he falsely
portrayed himself as "an unwitting dupe" (the district
court's words) in the December 12 sale, and falsely stated
that he had nothing whatsoever to do with the December 16 and
20 sales. Cf. United States v. Dunnigan, 61 U.S.L.W. 4180,
4183, 1993 U.S. LEXIS 1779 (U.S. Feb. 23, 1993) (upholding
obstruction of justice enhancement under 3C1.1 where
defendant committed perjury at trial); United States v.
Akitoye, 923 F.2d 221, 228-29 (1st Cir. 1991) (same;
defendant falsely denied any knowledge of drug dealing and
characterized codefendant "as the villain of the piece").
While the counts charging these later two sales were
dismissed in connection with Olea's plea to Count I, Olea's
false assertions that he had not participated in them were
"material" for the purposes of U.S.S.G. 3C1.1 because they
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"would tend to influence or affect" the calculation of his
base offense level for his conviction on Count I. U.S.S.G.
3C1.1, comment. (n.5). The sentencing court did not err,
therefore, in adding a two-level enhancement for obstruction
of justice.
Finally, we turn to appellant's challenge to the
court's refusal to grant a two-level decrease for acceptance
of responsibility. Appellant contends that he was entitled
to such a decrease because he pleaded guilty to and expressed
some remorse for his crime under Count I. But a reduction
for acceptance of responsibility is not "a matter of right."
U.S.S.G. 3E1.1, comment. (n.3); United States v. O'Neil,
936 F.2d 599, 599 (1st Cir. 1991). Except in "extraordinary
cases," "[c]onduct resulting in an enhancement under 3C1.1
(Obstructing or Impeding the Administration of Justice)
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct . . . ." U.S.S.G.
3E1.1, comment. (n.4); United States v. Aymelek, 926 F.2d 64,
69 (1st Cir. 1991). The district court justifiably
determined that this was not the extraordinary case.
Appellant argues that the court improperly gave
weight to his statements denying any responsibility for the
two later drug sales that were charged in the dismissed
counts. It is true that, under our precedent, appellant was
not required to have shown remorse for the dismissed charges.
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United States v. Perez-Franco, 873 F.2d 455, 463 (1st Cir.
1989) ("[A] defendant who has made a plea agreement must
accept responsibility solely for the counts to which he is
pleading guilty."); see also O'Neil, 936 F.2d at 599.
However, the district court did not base its denial of the
acceptance of responsibility decrease solely upon defendant's
statements relative to the dismissed charges. It noted that
he had also lied in asserting that he had only a minor role
in the December 12 sale. His refusal to accept appropriate
responsibility for that sale, to which he pleaded, alone
warranted a finding that he did not accept responsibility.
Moreover, the court's supported finding that appellant had
lied when denying involvement in the two later sales took
appellant well beyond the Perez-Franco safe harbor, which
allows a defendant to remain silent as to the conduct
contained in a dismissed charge but does not sanction a
defendant's giving of materially false information relative
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thereto.4 There was no error in the court's refusal to find
that Olea had accepted responsibility.
III.
Finding no error in any of the court's rulings
below, we affirm appellant's sentence.
Affirmed.
4. While this proceeding is not controlled by the current
Application Note 1(a) to section 3E1.1, that note now
articulates the distinction we make. It reads, in pertinent
part:
Note that a defendant is not required to
volunteer, or affirmatively admit,
relevant conduct beyond the offense of
conviction in order to obtain a reduction
under subsection (a). A defendant may
remain silent in respect to relevant
conduct beyond the offense of conviction
without affecting his ability to obtain a
reduction under this subsection.
However, a defendant who falsely denies,
or frivolously contests, relevant conduct
that the court determines to be true has
acted in a manner inconsistent with
acceptance of responsibility[.]
U.S.S.G. 3E1.1, comment. (n.1(a)) (as amended, effective
Nov. 1, 1992). The district court here indicated that had
defendant said nothing about the later sales, instead of
falsely denying all involvement, it would have been prepared
to grant the decrease for acceptance of responsibility
(assuming truthfulness as to Count I).
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