UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1388
UNITED STATES OF AMERICA,
Appellee,
v.
JOSH MORILLO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Ernest Barone for appellant.
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Zechariah Chafee, Assistant United States Attorney, with
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whom Edwin J. Gale, United States Attorney, was on brief, for the
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United States.
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November 8, 1993
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SELYA, Circuit Judge. This proceeding requires us, for
SELYA, Circuit Judge.
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the first time, to chart the interrelationship between Fed. R.
App. P. 4(b) (delimiting the appeal period in criminal cases) and
Fed. R. Crim. P. 35(c) (the text of which is set forth in the
margin).1 We conclude that, under certain circumscribed
circumstances, post-judgment motions brought under the latter
rule can operate to extend the appeal period limned by the former
rule, and that the instant case qualifies for this elongating
effect. Thus, the appeal prosecuted by defendant-appellant Josh
Morillo is properly before us. This initial success heralds a
hollow victory, however, for we find Morillo's substantive
arguments unpersuasive and affirm the judgment below.
I.
I.
__
Background
Background
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A thumbnail sketch suffices to put this appeal into
workable perspective.2 In 1992, a federal grand jury indicted
appellant on three counts of distributing heroin in violation of
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1The rule provides:
The court, acting within 7 days after the
imposition of sentence, may correct a
sentence that was imposed as a result of
arithmetical, technical, or other clear
error.
Fed. R. Crim. P. 35(c). This provision has been in effect only
since December, 1991.
2The November 1992 edition of the federal sentencing
guidelines applies in this case. See United States v.
___ _______________
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). All
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references herein are to that version, unless otherwise
specifically indicated.
2
21 U.S.C. 841(a)(1) (1988). He entered a plea of not guilty.
The district court set the case for trial in December. On
November 30, appellant moved for the appointment of an
independent toxicologist to weigh the drugs that the government
planned to offer in evidence against him. He made it clear that
he was ready to plead guilty to the charges but for the dispute
over drug quantity. On December 10, 1992, without any agreement
anent weight, appellant changed his plea and acknowledged his
guilt on all counts. Some two months later the district court
granted appellant's longstanding motion and ordered the drugs
reweighed at a state-run laboratory. The laboratory reported its
findings soon thereafter.
At a sentencing hearing held on March 18, 1993, the
district court determined that the heroin involved in the counts
of conviction warranted a base offense level (BOL) of 18. See
___
U.S.S.G. 2D1.1(c)(13) (Drug Quantity Table).3 The judge
increased the BOL by two levels because of Morillo's aggravating
role in the offense, see U.S.S.G. 3B1.1(c), and decreased the
___
BOL by two levels for acceptance of responsibility, see id.
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3E1.1(a). When combined with appellant's criminal history
category (III), the various adjustments produced a guideline
sentencing range (GSR) of 33-41 months. The court sentenced
appellant at the range's apex and entered final judgment on March
19, 1993.
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3In Part III(A), infra, we discuss the relevant details of
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the debate over drug weight and, relatedly, the appropriateness
of the BOL.
3
On March 23, appellant filed a motion asking the court
to correct his sentence because of an alleged miscalculation in
figuring drug quantity. On April 1, appellant filed a notice of
appeal. On April 19, the district court addressed appellant's
post-judgment motion and denied it by means of a margin order.
Appellant did not file a further notice of appeal.
II.
II.
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Appellate Jurisdiction
Appellate Jurisdiction
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A.
A.
__
Suspensory Motions: An Overview
Suspensory Motions: An Overview
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In a criminal case, a defendant must appeal within 10
days after entry of a judgment of conviction. See Fed. R. App.
___
P. 4(b). Because the obligation is mandatory and jurisdictional,
unexcused failures of compliance inevitably result in the loss of
appeal rights. See United States v. Kress, 944 F.2d 155, 161 (3d
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Cir. 1991), cert. denied, 112 S. Ct. 1163 (1992); United States
_____ ______ _____________
v. Zuleta-Molina, 840 F.2d 157, 158 (1st Cir. 1988). However, in
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cases where the entry of a judgment is closely followed by the
filing of a certain type of revisory motion, the time limit is
relaxed. For example, most timely motions for new trial, Fed. R.
Crim. P. 33, or timely motions in arrest of judgment, Fed. R.
Crim. P. 34, stall the running of the appeal period and permit an
appeal to be taken from the judgment of conviction, should it
stand, "within 10 days after the entry of an order denying the
[Rule 33 or Rule 34] motion." Fed. R. App. P. 4(b).
Post-judgment motions apart from those expressly
4
enumerated in Fed. R. App. P. 4(b) can have the same suspensory
effect. The paradigmatic example is a timely motion for
rehearing or reconsideration. See United States v. Ibarra, 112
___ _____________ ______
S. Ct. 4, 6-7 (1991) (per curiam) (holding that government's
timely motion for reconsideration restarted the appeal period
with respect to the underlying judgment as of the date when the
district court denied the motion); United States v. Dieter, 429
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U.S. 6, 8 (1976) (per curiam) (noting that "the consistent
practice in civil and criminal cases alike has been to treat
timely petitions for rehearing as rendering the original judgment
nonfinal for purposes of appeal for as long as the petition is
pending"); United States v. Healy, 376 U.S. 75, 78-80 (1964);
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United States v. Carr, 932 F.2d 67, 71-72 (1st Cir.), cert.
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denied, 112 S. Ct. 112 (1991); United States v. Gallardo, 915
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F.2d 149, 150 n.2 (5th Cir. 1990), cert. denied, 498 U.S. 1038
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(1991).
B.
B.
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Framing The Issue
Framing The Issue
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The pivotal question here is whether appellant's post-
judgment motion is of this suspensory genre.4 If the filing of
the motion did not interrupt the progress of the appeal period,
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4We use the term "suspensory" because, although some courts
and litigants describe the effect of such motions as "tolling"
the time for appeal, that description is inaccurate. Because the
appeal period begins to run afresh at the time of disposition of
the motion, the motion does not toll the appeal period, but
restarts it. See Ibarra, 112 S. Ct. at 5 n.2; see also Fed. R.
___ ______ ___ ____
App. 4(b) (discussing effect of timely motions filed under Fed.
R. Crim P. 33, 34).
5
then Fed. R. App. P. 4(b) applies without dilution and Morillo's
notice of appeal, filed more than 10 days after entry of
judgment, is a nullity. To avoid this result, appellant must
convince us that bringing the March 23 motion suspended the
running of the appeal period by rendering the original judgment
nonfinal for appeal purposes, or, put in its simplest aspect,
extended the time within which an appeal from the underlying
judgment could be taken.
C.
C.
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Analysis
Analysis
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1. Characterization. Our first order of business is
1. Characterization.
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to determine the character of the March 23 motion. The motion
did not invoke, or even refer to, any particular procedural rule.
When a motion is silent as to the location of its procedural
moorings, an inquiring court must look to the motion's substance,
including the relief requested, in order properly to characterize
it. See, e.g., Dieter, 429 U.S. at 8-9; Hannon v. Maschner, 981
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F.2d 1142, 1144 n.2 (10th Cir. 1992); Feinstein v. Moses, 951
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F.2d 16, 19 n.3 (1st Cir. 1991); United States v. Lefler, 880
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F.2d 233, 234 n.2 (9th Cir. 1989); see also Perez-Perez v.
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Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1st Cir. 1993)
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(stating that a court should examine the function of an
uncaptioned post-judgment motion in order to gauge its effect on
the appeal period).
Here, appellant styled his motion as a motion "to
correct sentence." Elevating substance over form, we conclude
6
that the motion invokes, or is at least the functional equivalent
of a motion brought pursuant to, Fed. R. Crim. P. 35(c), quoted
supra note 1. The motion posits, in fairly blunt terms, that the
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district court made a numerical mistake in its aggregation of
discerned drug quantities. Whether or not one classifies this
claimed bevue as "arithmetical," the motion alleges, at a bare
minimum, a strain of "clear error." This is the very sort of
situation that Rule 35(c) was designed to address. See Fed. R.
___
Crim. P. 35(c) advisory committee's note (1991 amendment)
(stating that the rule enables a court to rectify "an obvious
error or mistake" affecting the sentence so long as the error or
mistake is "discovered shortly after the sentence is imposed");
see also United States v. Corey, 999 F.2d 493, 496 (10th Cir.
___ ____ _____________ _____
1993) (explaining that Rule 35(c) codifies the district court's
"inherent authority . . . to correct sentencing errors"). And,
moreover, no one has suggested a better fit elsewhere.
2. Effect. Having identified the motion as a motion
2. Effect.
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under Fed. R. Crim. P. 35(c), the lens of inquiry narrows. We
focus next on whether a motion brought pursuant to Rule 35(c)
extends the time for appealing from the underlying judgment.5
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5To be sure, the text of Rule 35(c) does not mention motions
and contemplates that the district court, within certain
specified constraints, may act sua sponte to correct sentencing
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errors. But we do not read the rule as prohibiting either the
government or the defendant from calling the need for corrective
action to the sentencing court's attention by means of a timely
filed post-judgment motion. We believe that such motions are
permissible and note that other courts have read the rule as
authorizing them. See, e.g., Corey, 999 F.2d at 494-96; United
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States v. Turner, 998 F.2d 534, 536 (7th Cir. 1993).
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7
We conclude that it does.
It is settled beyond peradventure that a timely motion
for rehearing or reconsideration of a judgment in a criminal case
interrupts the original appeal period. See supra pp. 4-5
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(listing precedents). This tenet applies in criminal cases
notwithstanding that, by and large, there are "no explicit
provisions for rehearing proceedings in criminal cases." 16
Charles A. Wright et al., Federal Practice & Procedure 3950, at
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482 (Supp. 1993). Justice Harlan, writing for a unanimous Court,
explained the rationale for giving such motions suspensory
effect:
[Depriving parties to a criminal case] of the
opportunity to petition a lower court for the
correction of errors might, in some
circumstances, actually prolong the process
of litigation since plenary consideration
of a question of law [on appeal] ordinarily
consumes more time than disposition of a
petition for rehearing and could, in some
cases, impose an added and unnecessary burden
of adjudication upon [the appellate court].
Healy, 376 U.S. at 80. The Healy doctrine is still good law,
_____ _____
having survived the massive changes wrought by the Sentencing
Reform Act of 1984. See Carr, 932 F.2d at 71-72; accord Corey,
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999 F.2d at 495-96; United States v. Greenwood, 974 F.2d 1449,
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1470-71 (5th Cir. 1992), cert. denied, 113 S. Ct. 2354 (1993).
_____ ______
It stands to reason that, if a sentence is infected by
clear error, a timely motion seeking to correct it at least a
motion which, like this one, seeks to shrink the incarcerative
portion of the sentence and, thus, carries the potential to
affect substantive rights fits the Healy mold. Forcing a party
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8
to press ahead with an appeal while such a motion is pending
would countervail the principles of efficacy and judicial economy
that undergird Healy. Consequently, we hold that when, as now, a
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party to a criminal case files a timely motion under Fed. R.
Crim. P. 35(c), asking the sentencing court to reconsider an
issue in the case in a way that will, if successful, bring about
an alteration of the defendant's substantive rights, then the
filing of that motion renders the judgment nonfinal for purposes
of appeal.6 Accord Corey, 999 F.2d at 496.
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3. Timeliness. Our speleology into this
3. Timeliness.
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jurisdictional cave also uncovers a temporal dimension. We have
been careful to note, and believe it is prudent to emphasize,
that only a timely motion for rehearing or reconsideration should
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be accorded suspensory effect. See, e.g., Dieter, 429 U.S. at 8
___ ____ ______
(limiting suspensory effect to "timely petitions for rehearing");
Healy, 376 U.S. at 77, 80 (same). Timeliness is measured
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differently in different contexts. In Carr, we were confronted
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with a motion for rehearing addressed to a district court's
inherent power to correct an erroneous sentence.7 We accorded
suspensory effect, holding the motion to be timely because it was
brought "within the time frame allowed for taking an appeal from
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6The likelihood that appellant might prevail on his motion
is irrelevant for purposes of determining the motion's suspensory
effect. See Ibarra, 112 S. Ct. at 6. It is the character of the
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post-judgment motion, not its intrinsic merit or lack thereof,
that determines whether, if seasonably filed, it will interrupt
the running of the appeal period.
7The events in Carr antedated the adoption of Rule 35(c).
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See Carr, 932 F.2d at 71 n.5.
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9
the sentencing order." Carr, 932 F.2d at 72. Hence, the motion
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interrupted the running of the appeal period. Id.; accord
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Lefler, 880 F.2d at 235 (explaining that, "for a criminal
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defendant's motion for reconsideration to extend the time within
which a notice of appeal must be filed, it must be filed within
the [original 10-day appeal period]").
In precincts patrolled by Rule 35(c), however, the Carr
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formulation is overgenerous. The drafters of the rule were
concerned lest they pave further avenues of delay within the
criminal justice system. To assuage this concern, the rule
states that a court may act thereunder "within 7 days after the
imposition of sentence." Fed. R. Crim. P. 35(c). The interval
constitutes a limitation, see Fed. R. Crim. P. 35(c) advisory
___
committee's note (1991 amendment) (discussing the new rule's
"stringent time requirement") and the limitation is absolute:
if no motion is made within the seven-day period, none can be
made thereafter; and, moreover, if a motion is timely made but is
not decided within the seven-day period, the judge's power to act
under the rule subsides and the pending motion is deemed to be
denied as of that date. Judge Easterbrook neatly captured the
essence of the limitation: "The district court's inaction ha[s]
the same effect as denying the motion, making the judgment final
on the date the district judge's power to alter the sentence
expired." United States v. Turner, 998 F.2d 534, 536 (7th Cir.
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1993).
We derive two valuable lessons from the anatomy of the
10
rule: (1) a motion under Rule 35(c) interrupts the appeal period
and renders a judgment nonfinal only if it is brought within
seven days following the imposition of sentence; and (2) the
appeal period is restarted when the district court decides a
timeous Rule 35(c) motion or at the expiration of seven days next
following imposition of sentence, whichever first occurs.
4. Application. In this case, the district court
4. Application.
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pronounced sentence on March 18 and entered judgment the next
day.8 Appellant filed his Rule 35(c) motion on March 23,
comfortably within the seven-day period. The district court did
not act immediately upon the motion and, consequently, the
pendency of the motion rendered the judgment nonfinal only
through the end of the seven-day period, when the appeal period
restarted. From that point forward, appellant had 10 days within
which to docket his appeal. See Fed. R. App. P. 4(b). By filing
___
a notice of appeal on April 1, 1993, he met the deadline with
room to spare. Hence, the appeal is properly before us.9
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8For ease in reference we use March 19 as the dispositive
date. Withal, we note that Rule 35(c) purports to measure the
seven-day period from "the imposition of sentence." We think it
is likely that when the two dates differ, this phrase signifies
the date judgment enters, rather than the date sentence is orally
pronounced. See Zuleta-Molina, 840 F.2d at 158 n.1 (reiterating
___ _____________
that "[t]he prescribed period for filing a notice of appeal
begins at the time of entry of the judgment or order on the
criminal docket"); United States v. Cooper, 876 F.2d 1192, 1195
_____________ ______
(5th Cir. 1989) (stating that an appeal's timeliness is measured
from the date judgment is entered on the docket, not from the
date of order). At any rate, the one-day differential has no
material effect in this case.
9There are other questions that might affect the
jurisdictional calculus in cases of this stripe but those
questions are not presented on this record. For instance, we
11
III.
III.
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The Merits
The Merits
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A.
A.
__
Drug Quantity
Drug Quantity
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Under the guidelines, drug quantity is "a key datum" in
the sentencing of narcotics offenders. United States v. Bradley,
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917 F.2d 601, 604 (1st Cir. 1990). Because drug quantity
profoundly affects sentence length, relatively small quantitative
differences often have a significant leveraging effect. The
phenomenon grows more pronounced as amounts edge closer to the
lines that have been drawn within the drug quantity table. This
case aptly illustrates the point. The district court found that
the heroin involved in the offenses of conviction weighed just
over 20 grams. The defense contends that the heroin weighed
19.75 grams. This seemingly slight difference translates into an
increment of two offense levels. See U.S.S.G. 2D1.1(c)(13),
___
(14) (Drug Quantity Table) (setting BOL of 18 for offenses
involving at least 20 but less than 40 grams of heroin and
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have no occasion to consider (i) whether a different result might
obtain if it could be shown that a movant brought a post-judgment
motion in bad faith, see Ibarra, 112 S. Ct. at 7 n.3; or (ii)
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whether a Rule 35(c) motion that seeks to correct an error but
not to alter substantive rights possesses suspensory effect, cf.
___
FCC v. League of Women Voters, 468 U.S. 364, 373 (1984)
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(emphasizing that suspension of the appeal period while a motion
for reconsideration is pending results only when the motion
"actually seeks an alteration of the rights adjudicated in the .
. . judgment") (citation and internal quotation marks omitted);
FTC v. Minneapolis-Honeywell Co., 344 U.S. 206, 211-12 (1952)
___ _________________________
(similar); or (iii) whether the seven-day period mentioned in
Rule 35(c) should be counted under Fed. R. Crim. P. 45(a) or Fed.
R. App. P. 26(a) a choice that will affect how weekends and
holidays factor into the count.
12
setting BOL of 16 for offenses involving at least 10 but less
than 20 grams of heroin). A two-level spread easily can produce
a difference of over a year in a standard sentence.10
The facts relating to the dispute over drug quantity
can be succinctly summarized. Defendant was charged with
distributing heroin on three occasions: February 7, 20, and 21,
1992. Each transaction culminated in the exchange of a
substantial number of "browns," individually packaged for street-
level sales. Immediately following each transaction, the federal
Drug Enforcement Administration (DEA) estimated the weight of the
purveyed drugs by representative sampling, that is, by weighing a
few of the "browns" and multiplying the average weight by the
total number of packs contained in the consignment. On this
basis, the DEA reported that the first transaction involved 6.51
grams of heroin, the second transaction involved 1.24 grams, and
the final transaction involved 20.30 grams. Appellant contested
only the last of these three assessments. Pursuant to the
district court's order, the state toxicology laboratory studied
the heroin involved in the third transaction, using its own
formula, and estimated that it weighed between 10.39 and 16.21
grams. Of necessity, however, this estimate did not include the
weight of the heroin previously extracted from the third batch by
the DEA, used in arriving at the DEA's drug quantity
determination, and never replaced.
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10For example, in Morillo's criminal history category (III),
the spread between the high end of a Level 18 GSR (41 months) and
the low end of a Level 16 GSR (27 months) is 14 months.
13
Faced with these competing estimates, the judge found
it probable that the third batch contained at least 12 grams.
This total, when augmented by the weight of the drugs from the
first two transactions (6.51 and 1.24 grams, respectively) and
the sample amount originally extracted from the third transaction
(0.41 grams), brought the drug quantity over 20 grams and the BOL
to 18.11
The government has the burden of proving drug quantity
by a fair preponderance of the evidence. See United States v.
___ _____________
Sklar, 920 F.2d 107, 110 (1st Cir. 1990). Absent a mistake of
_____
law, we will set aside a sentencing court's determination of drug
quantity only if it is clearly erroneous. See United States v.
___ ______________
Argencourt, 996 F.2d 1300, 1307 (1st Cir. 1993); United States v.
__________ _____________
McCarthy, 961 F.2d 972, 978 (1st Cir. 1992); Bradley, 917 F.2d at
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605. In other words, as a precondition to relief on appeal, an
appellant must convince us that the district court made "a
serious mistake" in figuring drug quantity. Sklar, 920 F.2d at
_____
111.
We discern no error here. When it is impossible or
impractical to obtain an exact drug quantity for sentencing
purposes, a reasoned estimate will suffice. See Sklar, 920 F.2d
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at 113; United States v. Hilton, 894 F.2d 485, 488 (1st Cir.
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11Appellant's post-judgment motion claimed clear error on
the theory that the judge intended to aggregate only the first
three of the quantities mentioned in the text. In rejecting the
Rule 35(c) motion, however, Judge Lagueux made it clear that he
also intended to include the sample amount from the final
transaction.
14
1990); United States v. Gerante, 891 F.2d 364, 369 (1st Cir.
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1989). The court below achieved this benchmark, taking a
conservative approach to the disputed third transaction. Given
the divergent laboratory estimates ranging from a low of 10.39
grams to a high of 20.3 grams, the court's decision that a figure
toward the low end of the continuum represented the most probable
weight cannot be faulted. Cf., e.g., United States v. 22.80
___ ____ _____________ _____
Acres of Land, 839 F.2d 1362, 1365 (9th Cir. 1988) (stressing
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district court's flexibility in determining value of property
where testimony of six expert witnesses indicated wide range of
values). Where, as here, the evidence fully supports more than
one inference, a sentencing court's choice from among plausible
alternatives cannot be clearly erroneous. See Bradley, 917 F.2d
___ _______
at 606; United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
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B.
B.
__
Acceptance of Responsibility
Acceptance of Responsibility
____________________________
The district court found that appellant had accepted
responsibility for his criminality and trimmed his offense level
by two levels on that account, see U.S.S.G. 3E1.1(a), but
___
refused to grant an additional one-level credit under U.S.S.G.
3E1.1(b).12 Appellant assigns error to this refusal, eyeing a
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12The applicable guideline reads:
(a) If the defendant clearly demonstrates
acceptance of responsibility for his offense,
decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease
under subsection (a), the offense level
determined prior to the operation of
15
further reduction pursuant to section 3E1.1(b)(2).
A defendant bears the burden of proving entitlement to
decreases in the offense level, including downward adjustments
for acceptance of responsibility. See, e.g., United States v.
___ ____ _____________
Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993). Once the
_____________
sentencing court has ruled against him on such an issue, the
defendant faces an uphill battle. We have held, in the context
of what is now section 3E1.1(a), that "[w]hether a defendant
`clearly demonstrates a recognition and affirmative acceptance of
personal responsibility' is a fact-dominated issue, and the
district court's decision to withhold a reduction in the offense
level will not be overturned unless clearly erroneous." United
______
States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation
______ _____
omitted). The clearly erroneous standard also guides appellate
review of district court determinations under section 3E1.1(b).
See United States v. Donovan, 996 F.2d 1343, 1346 (1st Cir.
___ _____________ _______
1993); see also U.S.S.G. 3E1.1 comment. (n.5).
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____________________
subsection (a) is level 16 or greater, and
the defendant has assisted authorities in the
investigation or prosecution of his own
misconduct by taking one or more of the
following steps:
(1) timely providing complete
information to the government concerning
his own involvement in the offense; or
(2) timely notifying authorities of his
intention to enter a plea of guilty,
thereby permitting the government to
avoid preparing for trial and permitting
the court to allocate its resources
efficiently,
decrease the offense level by 1 additional
level.
U.S.S.G. 3E1.1.
16
We find no clear error in the district court's
determination that appellant failed to qualify for the added
discount under section 3E1.1(b)(2). Appellant was arraigned on
October 20, 1992. He pleaded not guilty. Several weeks later,
in his November 30 motion for the appointment of an independent
toxicologist, appellant indicated that he was "prepared to plead
guilty to the three charges . . . but for the dispute as to the
weight" of the drugs. In our view, notification of an intention
to enter a guilty plea, subject to a major condition, is far too
problematic to meet the standard of section 3E1.1(b)(2). That
provision was designed to allow the government and the district
court to conserve resources by avoiding unnecessary trial
preparation. See, e.g., United States v. Lombardi, ___ F.3d ___,
___ ____ _____________ ________
___ (1st Cir. 1993) [No. 92-2450, slip op. at 11]. A conditional
offer to plead does not serve this end; until the contingency is
removed, the prosecution must still prepare for trial and the
court must still reserve calendar time. Thus, the district judge
did not err in refusing to treat the November 30 offer as a
"notification" within the purview of section 3E1.1(b)(2).
There is little more that need be said. Appellant did
not plead unconditionally until December 10, 1992 the very date
that the court had set for jury selection. A defendant who
withholds a guilty plea until he stands poised on the brink of
trial has no entitlement to the soothing unguent of section
3E1.1(b)(2). Therefore, the court below acted appropriately in
awarding appellant a two-level, rather than a three-level,
17
decrease for acceptance of responsibility.
C.
C.
__
Role in the Offense
Role in the Offense
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Finally, appellant claims that the district court erred
in its determination of his role in the criminal activity. See
___
U.S.S.G. 3B1.1(c) (providing a two-level increase for assuming
managerial responsibilities in certain criminal endeavors).
Boosting a defendant's BOL by two levels under this provision is
justified if the sentencing court determines that the offense(s)
of conviction involved at least two participants,13 and that
the defendant exercised control over one of them. See United
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States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991); United
______ _______ ______
States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990). The
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government must bear the burden of proving that an upward role-
in-the-offense adjustment is warranted.
In this case, it is undisputed that at least three
people participated in the felonious enterprise: appellant, his
supplier (Faustino Moronta, Jr.), and a courier, Oscar Severino.
On at least one occasion, appellant paged Severino via beeper,
and Severino responded to appellant's apartment with the
merchandise heroin apparently originating with Moronta. The
presentence investigation report (PSI Report) asserted that
Severino worked for and under the direction of Morillo.
____________________
13The defendant himself may be counted in determining the
overall number of participants. See United States v. Preakos,
___ ______________ _______
907 F.2d 7, 10 (1st Cir. 1990) (per curiam). But he must
exercise control over at least one other participant to warrant
an upward adjustment.
18
Appellant filed written objections to several aspects of the PSI
Report, but he did not object to this determination. At the
sentencing hearing, appellant's attorney argued briefly that his
client was only a middleman in the criminal transaction; while
conceding that Severino brought the drugs to the desired locus at
appellant's behest, counsel claimed that Severino did so as
Moronta's agent and that Morillo exercised no independent
control over him. Yet, appellant offered no evidence to
contradict the assertion contained in the PSI Report. Not
surprisingly, then, the district court accepted the probation
officer's version of the chain of command.
Facts contained in a presentence report ordinarily are
considered reliable evidence for sentencing purposes. See United
___ ______
States v. Zuleta-Alvarez, 922 F.2d 33, 35-36 (1st Cir. 1990),
______ ______________
cert. denied, 111 S. Ct. 2039 (1991); Ruiz, 905 F.2d at 508;
_____ ______ ____
United States v. Rivera Ramos, 856 F.2d 420, 424 (1st Cir. 1988),
_____________ ____________
cert. denied, 493 U.S. 837 (1989); see also United States v.
_____ ______ ___ ____ ______________
Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992) (ruling that
_______
district courts possess "broad discretion to determine what data
is, or is not, sufficiently dependable to be used in imposing
sentence"); United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st
_____________ ______________
Cir. 1991) (similar). We lack adequate reason to make an
exception to that rule for appellant's sake. A defendant who
accepts the probation department's configuration of the
sentencing record without contesting the facts set forth in the
PSI Report can scarcely be heard to complain when the sentencing
19
court uses those facts in making its findings. See, e.g., United
___ ____ ______
States v. Montoya, 967 F.2d 1, 3 (1st Cir.) (ruling that, where
______ _______
the defendant offered no information to suggest an inaccuracy in
the PSI Report's drug quantity computation, the sentencing court
could rely on the computation), cert. denied, 113 S. Ct. 507
_____ ______
(1992); United States v. Garcia, 954 F.2d 12, 19 (1st Cir. 1992)
_____________ ______
(holding that the sentencing court lawfully relied on the PSI
Report when appellant couched his objections exclusively as
interpretations of facts rather than as challenges to the
underlying facts themselves); United States v. Mir, 919 F.2d 940,
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943 (5th Cir. 1990) (explaining that the district court is free
to adopt facts contained in the PSI Report without further
inquiry where defendant objects to the PSI Report but offers no
rebuttal evidence); Ruiz, 905 F.2d at 508 (holding that a
____
sentencing court may rely on determinations contained in the PSI
Report where defendant adduces no countervailing evidence).
We need go no further. Mindful that appellate review
of role-in-the-offense determinations is conducted under a
deferential "clear error" standard, see United States v. Savoie,
___ _____________ ______
985 F.2d 612, 615 (1st Cir. 1993); Akitoye, 923 F.2d at 227, we
_______
cannot fault the district court, in the absence of contrary
evidence, for adopting the organizational structure suggested in
the PSI Report and finding that Morillo, who was able to page
Severino and have him deliver drugs on demand, exercised "some
degree of control or organizational authority" over Severino.
Fuller, 897 F.2d at 1220.
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20
Affirmed.
Affirmed.
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21