United States v. Anglon

Not for publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2202
UNITED STATES,
Appellee,
v.
PEDRO ANGLON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Thomas F. Connors, Jr. on brief for appellant.
Adi Goldstein, Assistant United States Attorney, Kenneth P.
Madden, Assistant United States Attorney, Craig N. Moore, United
States Attorney, on brief for appellee.
February 25, 2004
Per Curiam. Pedro Anglon appeals from a 135-month
sentence imposed following his guilty plea to conspiring to
distribute and to possess with intent to distribute the drug
"ecstasy," and to distributing ecstasy on three occasions in August
and September, 2001. On appeal, Anglon argues that the sentencing
court erred in calculating the drug quantity attributable to him
and in enhancing his base offense level for his supervisory role in
the offense (and, consequently, denying him a "safety valve"
reduction). As neither argument is availing, we affirm Anglon's
sentence.
I. Drug Quantity
The sentencing court determined that the pre-sentence
report ("PSR") had properly attributed the equivalent of 7,022.12
kilograms of marijuana to Anglon in calculating his base offense
level ("BOL") of 34. That drug quantity was based upon: 1) the
quantity of ecstasy pills sold in the transactions charged in
Counts II - IV, to which Anglon pled guilty; 2) the quantity of
ecstasy pills sold in the transactions charged in Counts V and VI
of the indictment (which did not charge Anglon as a participant);
3) a small sample of heroin (.27 grams) delivered by co-defendant
Félix R. Martínez on December 8, 2001; and 4) $7,000 in cash and
cocaine, cocaine base and heroin seized in a search of Anglon's
residence on December 10, 2001. The cocaine base alone accounted
for 6,746 kilograms of the total drug quantity, determining
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Anglon's BOL of 34 (corresponding with at least 3,000 but not more
than 10,000 kilograms of marijuana).
Anglon argues that the district court erred in including
as "relevant conduct" the second, third and fourth categories
listed above in calculating drug quantity. Because we conclude
that the district court did not err in including the fourth
category as relevant conduct, and the exclusion of the drug
quantities in categories 2 and 3 would not impact Anglon's BOL or
sentence, we need not consider Anglon's challenge to categories 2)
and 3). See United States v. Young, 78 F.3d 758, 763 n.4 (1st Cir.
1996)(noting that it was unnecessary to consider whether a certain
drug was properly included because its exclusion from the total
drug quantity would not change appellant's base offense level or
sentencing range).
Under the United States Sentencing Guidelines,
a court is to consider all relevant conduct in
determining the quantity of drugs for which a
defendant is responsible. U.S.S.G. § 1B1.3.
A preponderance of the evidence standard
applies to the determination of drug quantity,
and a sentencing court's drug quantity
determination is a factual matter that will
not be disturbed on appeal unless it is
clearly erroneous.
United States v. May, 343 F.3d 1, 6 (1st Cir. 2003) (citations
omitted).
Anglon's PSR reported that a search of his apartment and
the basement to his apartment building on December 10, 2001,
resulted in the seizure of $7,000 in cash from Anglon's apartment
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and quantities of cocaine, cocaine base and heroin from the
basement. Anglon argues on appeal, as he did in his objections to
the PSR, that the cash and drugs seized should not have been
included as relevant conduct because there was insufficient
evidence connecting them to him. He also argues that there was an
insufficient nexus to the charged conduct because the drugs seized
were different in type from the drug Anglon was charged with
distributing (ecstasy).
Under the Sentencing Guidelines, 'relevant
conduct' includes all acts 'that were part of
the same course of conduct or common scheme or
plan as the offense of conviction[.]' U.S.S.G.
§ 1B1.3. For two or more offenses to be
considered part of a common scheme or plan,
'they must be substantially connected to each
other by at least one common factor, such as
common victims, common accomplices, common
purpose, or similar modus operandi.' U.S.S.G.
§ 1B1.3, comment. (n.9(A)).
Young, 78 F.3d at 763. A sentencing court's determination that an
offense forms part of the same course of conduct or common scheme
or plan "is a predominantly factual finding that will be disturbed
only if clearly erroneous." United States v. Garcia, 954 F.2d 12,
16 (1st Cir. 1992).
After hearing testimony from Anglon and his wife that
they had only limited access to the basement where the drugs were
found, and contrary testimony by a police detective who executed
the search, the sentencing court concluded that Anglon's and his
wife's testimony was not credible. "It is settled beyond cavil
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that, in the sentencing phase of a criminal case, credibility
choices are within the exclusive province of the district judge."
United States v. Conley, 156 F.3d 78, 85 (1st Cir. 1998).
Similarly, the sentencing court implicitly found that Anglon's
claim that he did not know the origins of the $7,000 in cash seized
from his apartment, but that it was not drug money, was not
credible.
The fact that the drugs seized from Anglon's residence
were of different types (cocaine, cocaine base and heroin) than the
drug involved in the charged offense (ecstasy) is not
determinative. See May, 343 F.3d at 7; Young, 78 F.3d at 763. The
PSR reported that Martínez delivered the sample of heroin to Agent
Cruz on December 8, 2001, immediately after paying a visit to
Anglon's residence. It also indicated that during the August 15,
2001 and September 18, 2001 transactions, Anglon made references to
dealing cocaine and heroin in his conversations with Agent Cruz.
Finally, the PSR stated that during the search of 8 Mawney Street
on December 10, 2001, a scale, sifter and grinder, containing
heroin residue, were seized from inside Anglon's apartment. In
light of this evidence, to which Anglon made no objection, the
inclusion (as relevant conduct) of the drugs and cash seized from
Anglon's address was not clearly erroneous.
II. Role in the Offense and Safety Valve
The district court increased Anglon's base offense level
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by two levels, pursuant to U.S.S.G. § 3B1.1(c), for his role as "an
organizer, leader, manager or supervisor in any criminal activity"
involving one-to-three other participants. A two-level increase
under § 3B1.1(c) is justified
if the sentencing court supportably finds that
(1) the criminal enterprise involved at least
two complicit participants (of whom the
defendant may be counted as one), and (2) the
defendant, in committing the offense,
exercised control over, organized, or was
otherwise responsible for superintending the
activities of, at least one of those persons.
United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997). The
government bears the burden of proving by a preponderance of the
evidence that the defendant qualifies for such an adjustment. See
id. The evidence supporting the role in the offense determination
may be wholly circumstantial. See id. at 4. The government need
only prove that the defendant exercised authority or control over
another participant on one occasion. See id.; United States v.
Brown, 298 F.3d 120, 122 (1st Cir. 2002), cert. denied, 537 U.S.
1096 (2002). We review such a determination for clear error. See
Brown, 298 F.3d at 122.
In his testimony at the sentencing hearing, Anglon stated
that he never had anyone "working for [him], delivering or
receiving drugs other than the co-defendants in this case." He
testified that he used to have Martínez make deliveries from him so
that Anglon would not have drugs on his person. Anglon admitted to
having "arranged" the August 15, 2001 transaction and that he "had
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Mr. Paulino deliver ecstasy pills to Agent Cruz." He specified
that he had told co-defendant Juan Paulino to bring the ecstasy
pills to the restaurant and, after the pills were delivered and
paid for, had told Paulino to bring the money to Anglon's
apartment. Anglon denied that he was the boss of anyone and
maintained that he and Martínez and Paulino were equal partners,
sharing the profits from the drug sales equally. On the basis of
this evidence, the district court's conclusion that the government
had proved by a preponderance of the evidence that Anglon had
exercised authority or control over another participant on at least
one occasion, was not clearly erroneous. That competing reasonable
inferences might be drawn from Anglon's testimony did not make the
sentencing court's choice between them clearly erroneous. See
Cruz, 120 F.3d at 4.
The district court did not err in determining that Anglon
did not qualify for a two-level reduction under the "safety valve"
provision. See U.S.S.G. §§ 2D1.1(b)(6), 5C1.2(a). Such a
reduction is permitted only if "the defendant was not an organizer,
leader, manager, or supervisor of others in the offense." §
5C1.2(a)(4).
Affirmed. See 1st Cir. R. 27(c).
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