June 8, 1992 ____________________
June 8, 1992 ____________________
No. 91-1537
No. 91-1537
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
EDGAR MONTOYA,
EDGAR MONTOYA,
Defendant, Appellant.
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
[Hon. Gene Carter, U.S. District Judge]
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____________________
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Before
Before
Torruella, Circuit Judge,
Torruella, Circuit Judge,
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Coffin, Senior Circuit Judge,
Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
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J. Michael McGuinness with whom McGuinness & Parlagreco was on
J. Michael McGuinness with whom McGuinness & Parlagreco was on
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brief for appellant.
brief for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
F. Mark Terison, Assistant United States Attorney, with whom
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Richard S. Cohen, United States Attorney, was on brief for appellee.
Richard S. Cohen, United States Attorney, was on brief for appellee.
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CYR, Circuit Judge. Edgar Montoya pled guilty to one count of
CYR, Circuit Judge.
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possessing cocaine, with intent to distribute, in violation of 21
U.S.C. 841(a)(1), (b)(1)(C). On appeal, Montoya attempts to chal-
lenge the constitutionality and reliability of the district court's
application of the "relevant conduct" guideline, see U.S.S.G. 1B1.3-
___
,* which resulted in a determination that Montoya was responsible for
1,270.5 grams of cocaine, as set forth in the presentence report.
Montoya claims that the sixty-three month sentence imposed by the
district court violates the Fifth and Sixth Amendments.**
1. Sixth Amendment Claim
1. Sixth Amendment Claim
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Montoya asserts on appeal, for the first time, that he was denied
the right to confront the witnesses against him, since the governmen-
t's evidence at sentencing principally consisted of hearsay testimony
from a law enforcement officer as to what Montoya's criminal associ-
ates, turned government informants, said were the quantities of
cocaine for which Montoya was responsible. At no time did Montoya
____________________
*For drug offenses such as the one to which Montoya pled guilty,
*For drug offenses such as the one to which Montoya pled guilty,
1B1.3 provides that the base offense level shall be determined on
1B1.3 provides that the base offense level shall be determined on
the basis of "all such acts and omissions that were part of the same
the basis of "all such acts and omissions that were part of the same
course of conduct or common scheme or plan as the offense of convic-
course of conduct or common scheme or plan as the offense of convic-
tion . . . ." U.S.S.G. 1B1.3(a)(2).
tion . . . ." U.S.S.G. 1B1.3(a)(2).
**The guideline sentencing range was 51 to 63 months, based on a base
**The guideline sentencing range was 51 to 63 months, based on a base
offense level of 26, see U.S.S.G. 2D1.1(c)(9) (1,270.5 grams of
offense level of 26, see U.S.S.G. 2D1.1(c)(9) (1,270.5 grams of
___
cocaine), an offense level of 24 (two-point reduction for acceptance
cocaine), an offense level of 24 (two-point reduction for acceptance
of responsibility, see id. 3E1.1), and a category I criminal histo-
of responsibility, see id. 3E1.1), and a category I criminal histo-
___ ___
ry.
ry.
2
raise the Sixth Amendment claim in the district court,*** or at-
tempt to call any declarant whose accusatory statements on the rele-
vant conduct issue formed the basis for the hearsay relied on by the
district court. As it is well established that reliable hearsay is
admissible at sentencing, U.S.S.G. 6A1.3(a), p.s.; see, e.g.,
___ ____
United States v. Figaro, 935 F.2d 4, 8 (1st Cir. 1991) ("reliability"
_____________ ______
is the essential evidentiary requirement at sentencing), defense
counsel's conclusory allusion to "the hearsay nature of [one criminal
associate's statements about the cocaine] quantities" did not fairly
alert the district court to a Sixth Amendment "confrontation"
claim.**** As we deem any Sixth Amendment claim to have been
waived, see United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991)
___ _____________ _____
(challenges to guideline sentence cannot be raised for first time on
appeal) (collecting cases), we need not consider whether the Sixth
Amendment right to confrontation is implicated in guideline sentencing
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***Montoya does not intimate that there was any lack of opportunity to
***Montoya does not intimate that there was any lack of opportunity to
raise or establish these constitutional claims below. On May 6, 1991,
raise or establish these constitutional claims below. On May 6, 1991,
following a conference with counsel, the district court issued an
following a conference with counsel, the district court issued an
order scheduling the sentencing hearing for May 23, and expressly
order scheduling the sentencing hearing for May 23, and expressly
listing "the proper drug quantity" as one of the three disputed
listing "the proper drug quantity" as one of the three disputed
matters to be resolved at sentencing. The order directed the parties
matters to be resolved at sentencing. The order directed the parties
and counsel "to be prepared to present any evidence relevant to
and counsel "to be prepared to present any evidence relevant to
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sentencing issues." (emphasis added). The evidentiary hearing appears
sentencing issues." (emphasis added). The evidentiary hearing appears
to have been scheduled in response to a letter from Montoya's attorney
to have been scheduled in response to a letter from Montoya's attorney
to the probation officer, alleging that the informants had lied to
to the probation officer, alleging that the informants had lied to
government agents in stating that Montoya had taken part in any drug
government agents in stating that Montoya had taken part in any drug
transaction other than that charged in the indictment.
transaction other than that charged in the indictment.
****Absent any request or attempt to call the declarants, Murphy and
****Absent any request or attempt to call the declarants, Murphy and
Stanley, defense counsel's one conclusory reference to hearsay at best
Stanley, defense counsel's one conclusory reference to hearsay at best
would have been interpreted as a challenge to the accuracy of the
would have been interpreted as a challenge to the accuracy of the
estimates.
estimates.
3
proceedings.*****
2. Fifth Amendment Due Process Claim
2. Fifth Amendment Due Process Claim
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Montoya attempts, again for the first time, to assert a Fifth
Amendment due process claim based on the alleged unreliability of the
informants' estimates of the quantities of cocaine for which he was
determined responsible under the "relevant conduct" guideline. See
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United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke,
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334 U.S. 736, 741 (1948). Although the due process claim was waived
as well, as part of our "plain error" analysis we nonetheless consider
whether the information relied on by the district court in its "rele-
vant conduct" determination was sufficiently reliable to avert any
fundamental unfairness in the sentencing of Montoya. See United
___ ______
States v. Nickens, 955 F.2d 112, 118 (1st Cir. 1992)(quoting United
______ _______ ______
States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S.
______ _______ ____ ______
844 (1987)), petition for cert. filed, U.S. App. LEXIS 1107 (Apr. 27,
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*****There appears to be some division among the courts of appeals
*****There appears to be some division among the courts of appeals
which have considered the issue. Compare, e.g., United States v.
which have considered the issue. Compare, e.g., United States v.
_______ ____ ______________
Kikumura, 918 F.2d 1084, 1102-03 & n.19 (3d Cir. 1990) (declining to
Kikumura, 918 F.2d 1084, 1102-03 & n.19 (3d Cir. 1990) (declining to
________
apply confrontation clause to guideline sentencing); United States v.
apply confrontation clause to guideline sentencing); United States v.
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Reid, 911 F.2d 1456, 1464 (10th Cir. 1990), cert. denied, 111 S. Ct.
Reid, 911 F.2d 1456, 1464 (10th Cir. 1990), cert. denied, 111 S. Ct.
____ ____ ______
990 (1991); United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir.
990 (1991); United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir.
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1990), cert. denied, 111 S. Ct. 976 (1991), with United States v.
1990), cert. denied, 111 S. Ct. 976 (1991), with United States v.
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Silverman, 945 F.2d 1337, 1343-46 (6th Cir. 1991) (confrontation
Silverman, 945 F.2d 1337, 1343-46 (6th Cir. 1991) (confrontation
_________
clause applies to guideline sentencing), vacated, reh'g en banc
clause applies to guideline sentencing), vacated, reh'g en banc
_______ _____ __ ____
granted (Dec. 4, 1991); United States v. Fortier, 911 F.2d 100, 103
granted (Dec. 4, 1991); United States v. Fortier, 911 F.2d 100, 103
_______ _____________ _______
(8th Cir. 1990); United States v. Wise, 923 F.2d 86 (8th Cir. 1991),
(8th Cir. 1990); United States v. Wise, 923 F.2d 86 (8th Cir. 1991),
_____________ ____
vacated, reh'g en banc granted (Mar. 15, 1991).
vacated, reh'g en banc granted (Mar. 15, 1991).
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4
1992).******
The sentencing judge is vested with wide discretion to determine
the information on which sentencing guideline decisions will be based,
Figaro, 935 F.2d at 8, and may consider reliable hearsay evidence.
______
See United States v. Aymelek, 926 F.2d 64, 68 (1st Cir. 1991); United
___ ______________ _______ ______
States v. Zuleta-Alvarez, 922 F.2d 33, 36-7 (1st Cir. 1990), cert.
______ ______________ _____
denied, 111 S.Ct. 2039 (1991). The hearsay testimony presented at the
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sentencing hearing by Drug Enforcement Agent Henry O'Donoghue, relay-
ing the cocaine quantity estimates made by Murphy and Stanley, was not
only correctly considered competent for sentencing purposes, see,
___
e.g., United States v. Chavez, 947 F.2d 742, 746 (5th Cir. 1991);
____ ______________ ______
United States v. Jewel, 947 F.2d 224, 236-38 (7th Cir. 1991), but was
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fairly and reasonably treated as reliable. The district court credit-
ed O'Donoghue's hearsay testimony only after an evidentiary hearing at
which Montoya was entitled to submit evidence, testify, and call other
witnesses, including the nonconfidential informants whose first-hand
knowledge was at issue.******* Where a defendant fails even to
____________________
******Every criminal sentence must, of course, "be based on informa-
******Every criminal sentence must, of course, "be based on informa-
tion which has 'sufficient indicia of reliability to support its
tion which has 'sufficient indicia of reliability to support its
probable accuracy[,]'" Figaro, 935 F.2d at 8 (quoting U.S.S.G. 6A1.-
probable accuracy[,]'" Figaro, 935 F.2d at 8 (quoting U.S.S.G. 6A1.-
______
3); see also United States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st
3); see also United States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st
___ ____ _____________ ______________
Cir. 1990) (sentencing court must "make an independent determination
Cir. 1990) (sentencing court must "make an independent determination
as to the reliability of the evidence presented by the government"),
as to the reliability of the evidence presented by the government"),
cert. denied, 111 S.Ct. 2039 (1991), but the sentencing judge is
cert. denied, 111 S.Ct. 2039 (1991), but the sentencing judge is
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vested with "wide discretion" to determine sentencing information
vested with "wide discretion" to determine sentencing information
reliability, United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st Cir.
reliability, United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st Cir.
_____________ ______________
1991).
1991).
*******Montoya never attempted to interview the declarants, nor did he
*******Montoya never attempted to interview the declarants, nor did he
ever request their appearance or seek to subpoena them. Cf. Zuleta-
ever request their appearance or seek to subpoena them. Cf. Zuleta-
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Alvarez, 922 F.2d at 36 (upholding, in similar circumstances, denial
Alvarez, 922 F.2d at 36 (upholding, in similar circumstances, denial
_______
5
request an opportunity to present the testimony of a noncon-
fidential informant-declarant whose statements are presented in the
form of hearsay testimony, the "plain error" hurdle looms large.
Montoya settled for a thorough cross-examination of Agent
O'Donoghue. Defense counsel elicited the self-serving nature of the
informants' cooperation with the government and the opportunities the
informants would have had to conform their "stories" before implicat-
ing Montoya in the "relevant conduct" to which O'Donoghue testified.
See United States v. Rodriguez-Luna, 937 F.2d 1208, 1212 n.4 (7th Cir.
___ _____________ ______________
1991) (defendant discredits hearsay declarant through cross-examina-
tion of witnesses at sentencing). Nevertheless, a careful review of
the record reveals no significant basis for doubting the reliability
of Agent O'Donoghue's hearsay testimony as to the information provided
by Murphy.
The district court supportably found that Montoya had been
"reliably identified by two cooperating informants as a supplier of
cocaine for numerous other drug transactions." The Presentence Report
("PSR") represents, and Montoya does not dispute, that the four-ounce
cocaine transaction to which he pled guilty was arranged over the
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of belated request to require witnesses to appear for cross-examina-
of belated request to require witnesses to appear for cross-examina-
tion at sentencing). At oral argument, Montoya contended that any
tion at sentencing). At oral argument, Montoya contended that any
attempt by trial counsel to have the declarants made available at the
attempt by trial counsel to have the declarants made available at the
sentencing hearing would have been tantamount to ineffective assis-
sentencing hearing would have been tantamount to ineffective assis-
tance. Since it assumes that presentation of the declarants' testimo-
tance. Since it assumes that presentation of the declarants' testimo-
ny would have been damaging to Montoya, we do not believe this conten-
ny would have been damaging to Montoya, we do not believe this conten-
tion fosters Montoya's claim that the hearsay testimony presented by
tion fosters Montoya's claim that the hearsay testimony presented by
Agent O'Donoghue was unreliable.
Agent O'Donoghue was unreliable.
6
telephone in less than two days by Murphy.******** It would
be reasonable to infer that covert drug transactions normally are not
so readily arranged between "strangers" to the drug business. In any
event, the district court was not required to discard common sense and
credit the bald assertion by Montoya's counsel (in opposition to the
PSR) to the effect that the four-ounce cocaine transaction was the
only cocaine deal ever conducted by Montoya and Murphy. See United
___ ______
States v. Sklar, 920 F.2d 107, 112 (1st Cir. 1990) (court need not
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"divorce [itself] from common sense").
The accuracy of the cocaine quantities for which Montoya was
sentenced under the "relevant conduct" guideline depended on other
information provided by informant Murphy. According to the PSR,
Murphy informed DEA agents that he had purchased between two and five
ounces of cocaine per week from Montoya during the July -September
1990 period. Although the Murphy-Montoya "sting" transaction in
December 1990 involved four ounces, the district court calculation
conservatively credited only the lower, two-ounce estimate for each of
these twelve weeks (a total of 680.4 grams). Similar estimates have
been credited and upheld for guideline sentencing determinations when
based on a preponderance of the reliable evidence.*********
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********Significantly, Agent O'Donoghue testified that Murphy's
********Significantly, Agent O'Donoghue testified that Murphy's
telephone conversations with Montoya about their previous cocaine
telephone conversations with Montoya about their previous cocaine
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transactions were recorded.
transactions were recorded.
*********See United States v. Cook, 949 F.2d 289, 296 & n.2 (10th Cir.
*********See United States v. Cook, 949 F.2d 289, 296 & n.2 (10th Cir.
___ _____________ ____
1991) (upholding drug quantity calculation based on low estimate of
1991) (upholding drug quantity calculation based on low estimate of
value of cocaine codefendant said was being sold daily); United States
value of cocaine codefendant said was being sold daily); United States
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v. Frondle, 918 F.2d 62, 63-5 & n.3 (8th Cir. 1990) (upholding attri-
v. Frondle, 918 F.2d 62, 63-5 & n.3 (8th Cir. 1990) (upholding attri-
_______
7
See Zuleta-Alvarez, 922 F.2d at 37 ("preponderance of evidence"
___ ______________
standard).**********
Although he disputed the PSR "relevant conduct" calculation based
on the information provided by informant Murphy, Montoya offered no
evidence to suggest that Murphy's information was inaccurate. In the
face of defense counsel's bald representation at sentencing that
Murphy "grossly overstated" any amounts of cocaine "he may have
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bution to defendant of 3 kilograms based on coconspirator's testimony
bution to defendant of 3 kilograms based on coconspirator's testimony
that defendant had been "fronted" between two and four kilograms
that defendant had been "fronted" between two and four kilograms
during period), cert. denied, 111 S.Ct. 1400 (1991); see also United
during period), cert. denied, 111 S.Ct. 1400 (1991); see also United
_____ ______ ___ ____ ______
States v. Cousineau, 929 F.2d 64, 67 (2d Cir. 1991) (upholding calcu-
States v. Cousineau, 929 F.2d 64, 67 (2d Cir. 1991) (upholding calcu-
______ _________
lation based on testimony of customers who purchased cocaine from
lation based on testimony of customers who purchased cocaine from
defendant); United States v. Easterling, 921 F.2d 1073, 1077-78 (10th
defendant); United States v. Easterling, 921 F.2d 1073, 1077-78 (10th
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Cir. 1990) (upholding calculation based on probation officer's testi-
Cir. 1990) (upholding calculation based on probation officer's testi-
mony that two purchasers interviewed by government agent admitted they
mony that two purchasers interviewed by government agent admitted they
had each purchased an estimated two pounds of metamphetamines), cert.
had each purchased an estimated two pounds of metamphetamines), cert.
_____
denied, 111 S.Ct. 2066 (1991); cf. United States v. Phillippi, 911
denied, 111 S.Ct. 2066 (1991); cf. United States v. Phillippi, 911
______ ___ _____________ _________
F.2d 149, 151 (8th Cir. 1990) (excluding amounts for which testimony
F.2d 149, 151 (8th Cir. 1990) (excluding amounts for which testimony
of informant "did not clearly establish either the dates on which []
of informant "did not clearly establish either the dates on which []
deliveries were made or the amounts of cocaine delivered . . . ."),
deliveries were made or the amounts of cocaine delivered . . . ."),
cert. denied, 111 S.Ct. 702 (1991).
cert. denied, 111 S.Ct. 702 (1991).
_____ ______
Although it has been recognized that evidence of drug quantities
Although it has been recognized that evidence of drug quantities
must possess some indicia of reliability beyond mere allegation, see,
must possess some indicia of reliability beyond mere allegation, see,
___
e.g., United States v. West, 948 F.2d 1042, 1045 (6th Cir. 1991),
e.g., United States v. West, 948 F.2d 1042, 1045 (6th Cir. 1991),
____ ______________ ____
cert. denied, 112 S.Ct. 1209 (1992); United States v. Reid, 911 F.2d
cert. denied, 112 S.Ct. 1209 (1992); United States v. Reid, 911 F.2d
_____ ______ ______________ ____
1456, 1464 (10th Cir. 1990) (discussing hearsay statements in particu-
1456, 1464 (10th Cir. 1990) (discussing hearsay statements in particu-
lar), cert. denied, 111 S.Ct. 990 (1991), contrary to the assertion
lar), cert. denied, 111 S.Ct. 990 (1991), contrary to the assertion
_____ ______
made by Montoya (for the first time on appeal), we know of no gloss on
made by Montoya (for the first time on appeal), we know of no gloss on
the reliability requirement that would require "at least some direct
the reliability requirement that would require "at least some direct
proof" for reliable drug volume quantification under the "relevant
proof" for reliable drug volume quantification under the "relevant
conduct" guideline.
conduct" guideline.
**********Montoya's offense level calculation was based on the dis-
**********Montoya's offense level calculation was based on the dis-
trict court's finding that his relevant conduct, combined with the
trict court's finding that his relevant conduct, combined with the
113.4 grams involved in the offense of conviction, totalled 1,270.5
113.4 grams involved in the offense of conviction, totalled 1,270.5
grams, and that the "relevant conduct" category of 500 grams to two
grams, and that the "relevant conduct" category of 500 grams to two
kilograms was therefore applicable. Thus, only a portion of the 680.4
kilograms was therefore applicable. Thus, only a portion of the 680.4
grams discussed in the text, supra at 7, and none of the remaining
grams discussed in the text, supra at 7, and none of the remaining
_____
amounts credited by the district court, need have been substantiated
amounts credited by the district court, need have been substantiated
by a preponderance of reliable evidence in order for the "relevant
by a preponderance of reliable evidence in order for the "relevant
conduct" determination to stand.
conduct" determination to stand.
8
received" from Montoya the "relevant conduct" findings by the
district court, based as they were on sufficiently reliable hearsay,
cannot be considered error, let alone clear error, see Zuleta-Alvarez,
___ ______________
922 F.2d at 37 (findings reviewed for clear error), or a miscarriage
of justice amounting to "plain error."
3. Conclusion
3. Conclusion
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Montoya was given every reasonable opportunity to challenge all
"relevant conduct" evidence material to the sentence imposed by the
district court. We are unpersuaded that the district court improperly
sentenced Montoya either on the basis of unreliable information or on
the strength of any erroneous finding of fact or conclusion of
law.***********
The district court judgment is affirmed.
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***********Montoya points out that he pled guilty to an indictment
***********Montoya points out that he pled guilty to an indictment
which charged only a December 18, 1990 cocaine possession, with intent
which charged only a December 18, 1990 cocaine possession, with intent
to distribute. See 21 U.S.C. 841(a)(1) & (b)(1)(C). He argues
to distribute. See 21 U.S.C. 841(a)(1) & (b)(1)(C). He argues
___
that the sentence imposed by the district court violated the plea
that the sentence imposed by the district court violated the plea
agreement. Under the plea agreement, the maximum sentence was 20
agreement. Under the plea agreement, the maximum sentence was 20
years' imprisonment and both parties were free to urge "the imposition
years' imprisonment and both parties were free to urge "the imposition
of any lawful sentence." We find no breach. See United States v.
of any lawful sentence." We find no breach. See United States v.
___ _____________
Fox, 889 F.2d 357 (1st Cir. 1989) (defendant agreed to plead guilty to
Fox, 889 F.2d 357 (1st Cir. 1989) (defendant agreed to plead guilty to
___
one charge of making a fictitious loan, but "relevant conduct" includ-
one charge of making a fictitious loan, but "relevant conduct" includ-
ed four uncharged fraudulent loans); see also United States v. Camuti,
ed four uncharged fraudulent loans); see also United States v. Camuti,
___ ____ _____________ ______
950 F.2d 72, 75 n.3 (1st Cir. 1991) (sentencing calculation may
950 F.2d 72, 75 n.3 (1st Cir. 1991) (sentencing calculation may
include conduct underlying dismissed counts) (citing cases).
include conduct underlying dismissed counts) (citing cases).
9
Montoya
Montoya
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Drug enforcement agent Henry John O'Donoghue learned of appellan-
ts' illicit activities through James K. Stanley and Daniel F. Murphy,
two defendants in another criminal case who cooperated with the
government upon their arrests. As part of his cooperation, Murphy
arranged by telephone to purchase 4 ounces (113.4 grams) of cocaine
from Montoya on December 18, 1990. Montoya's arrest upon completion
of the transaction led to the indictment and plea underlying this
case.
On March 13, 1991, the probation department prepared a presen-
tence report ("PSR"). The PSR described the offense conduct as
including amounts of cocaine substantially in excess of the 113.4
grams which were transferred in the arranged sale. Paragraph 4 of the
PSR explained that Stanley had told agent O'Donoghue, and one agent
Kevin Foley, that to his knowledge, appellant was Murphy's supplier of
cocaine. Stanley further informed the government agents that although
his supplier of cocaine was Murphy, he had purchased cocaine from
___
appellant three times twice "fronting" Murphy the money before
receiving the cocaine from Montoya, and once purchasing directly from
appellant. According to the PSR, the total amount of cocaine trans-
ferred from Montoya to Stanley was 63.7 grams.
Paragraph 5 of the PSR explained that Murphy had told the govern-
ment agents that appellant was his source of cocaine. The PSR stated
that "[b]etween November, 1988 and June, 1990, Murphy had purchased
approximately 7 to 28 grams of cocaine weekly from Montoya." Viewing
1
this information "[i]n a light most favorable to" appellant, the PSR
suggested that the relevant conduct involved in this pattern of
dealing was 413 grams, based on a conservative estimate of 59 weeks at
7 grams of cocaine per week.
Paragraph 6 of the PSR further related that between July and
October 1990, Murphy's purchases had increased to "between two and
five ounces of cocaine weekly from Montoya." Again putting the
evidence in the light most favorable to appellant, the PSR set the
relevant conduct from July to October 1990 at 680.4 grams, based on 12
weeks at 2 ounces of cocaine per week.
The total amount of cocaine included in the calculation of
appellant's base offense level was thus 1,270.5 grams. Through
counsel, appellant disputed the PSR's version of the relevant conduct,
specifically taking exception to paragraphs 4, 5 and 6 of the PSR. In
a letter dated April 5, 1991, counsel explained to the probation
officer responsible for preparing the PSR that it was appellant's
position that Stanley and Murphy had lied during their discussions
with government agents. According to counsel, appellant had not met
Murphy until late August or September of 1990, and he had never met
Stanley prior to being incarcerated with him because of the present
drug charge. In short, appellant's position was that he took part in
no drug transactions with either Stanley or Murphy other than the
113.4 gram transaction for which he was arrested.
At the sentencing hearing, held on May 23, 1991, the government
called agent O'Donoghue as a witness. Without any objection from
2
appellant, O'Donoghue testified as to what Stanley and Murphy had told
him during their "debriefings." The testimony largely tracked the
information in paragraphs 4, 5 and 6 of the PSR, which agent O'Donog-
hue testified was taken primarily from information which he had
provided to the probation department. O'Donoghue further testified
that the PSR's calculation of the amounts of cocaine involved were
accurate based on his discussions with Stanley and Murphy. Last,
O'Donoghue testified that he had reviewed tape recordings of the
telephone conversations during which Murphy and appellant arranged the
113.4 gram sale, and that Murphy and appellant appeared to know each
other and had even discussed prior cocaine trafficking during their
conversations.
Appellant's counsel cross-examined O'Donoghue, eliciting
O'Donoghue's admission that the only drug transaction which he person-
ally had witnessed between Montoya and anyone else was the 113.4 gram
sale of cocaine to Murphy. O'Donoghue also testified on cross-exami-
nation that the information he had obtained from Stanley and Murphy
had been obtained "under agreement of proffer," and counsel explored
the extent to which that affected their credibility. Defense counsel
also explored whether or not Murphy and Stanley had been held together
prior to their debriefings. O'Donoghue testified that Stanley had
been arrested first and had identified "a person, last name unknown"
3
as Murphy's supplier, whom he had met and transacted with.* However,
O'Donoghue admitted that prior to further debriefings, Stanley and the
by-then-arrested Murphy had been confined together.
Montoya then called witness Peter Drown to refute Stanley's
story, as told to (and by) O'Donoghue. Drown, a fellow inmate of
Montoya's, testified that he was with Montoya when they both bumped
into Stanley at the Windham Correctional facility. According to
Drown, it was clear to him from that meeting that Stanley and Montoya
had never met one another before.** However, Montoya presented no
evidence refuting O'Donoghue's testimony as it concerned Murphy.
Rather, in argument to the court, defense counsel declared that Murphy
had "grossly overstated the amounts of cocaine he may have received
__________ ___ ____ ________
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*On direct examination, O'Donoghue testified that Stanley had initial-
*On direct examination, O'Donoghue testified that Stanley had initial-
ly "identified Murphy's source of supply as an individual whom he knew
ly "identified Murphy's source of supply as an individual whom he knew
as Eddie, whom he later identified as Edgar Montoya." O'Donoghue
as Eddie, whom he later identified as Edgar Montoya." O'Donoghue
elaborated that during the "later debriefing on October 31st and
elaborated that during the "later debriefing on October 31st and
November 1st of 1990 . . . Mr. Stanley identified Mr. Montoya as
November 1st of 1990 . . . Mr. Stanley identified Mr. Montoya as
Murphy's source of supply because Mr. Stanley had met and in fact
Murphy's source of supply because Mr. Stanley had met and in fact
received cocaine from Mr. Montoya on three separate occasions."
received cocaine from Mr. Montoya on three separate occasions."
However, the written report prepared by O'Donoghue after the debrief-
However, the written report prepared by O'Donoghue after the debrief-
ings of Stanley on October 31 and November 1, 1990, by which time
ings of Stanley on October 31 and November 1, 1990, by which time
Stanley and Murphy had apparently been held together, still refers to
Stanley and Murphy had apparently been held together, still refers to
appellant as "Eddie L[ast]N[ame] U[nknown]." This is contrary to both
appellant as "Eddie L[ast]N[ame] U[nknown]." This is contrary to both
Agent O'Donoghue's testimony and to the PSR's description of these
Agent O'Donoghue's testimony and to the PSR's description of these
debriefings ("[Stanley] further reported that Edgar Montoya, to his
debriefings ("[Stanley] further reported that Edgar Montoya, to his
knowledge, was Murphy's source of cocaine.").
knowledge, was Murphy's source of cocaine.").
**In rebuttal, the government again called agent O'Donoghue, this time
**In rebuttal, the government again called agent O'Donoghue, this time
to testify as to what another informant had told him. According to
to testify as to what another informant had told him. According to
_______
O'Donoghue, one Mr. Veilleux, who was also incarcerated with Montoya,
O'Donoghue, one Mr. Veilleux, who was also incarcerated with Montoya,
informed O'Donoghue that he had overheard Montoya and Drown concocting
informed O'Donoghue that he had overheard Montoya and Drown concocting
a story that Montoya and Stanley did not know each other. Defense
a story that Montoya and Stanley did not know each other. Defense
counsel cross-examined O'Donoghue about the cold feelings between
counsel cross-examined O'Donoghue about the cold feelings between
Drown and Veilleux stemming from Drown having been a witness for the
Drown and Veilleux stemming from Drown having been a witness for the
government in a criminal trial in which Veilleux was convicted.
government in a criminal trial in which Veilleux was convicted.
4
from this defendant." (Emphasis added). In contending that the only
amount of cocaine which could properly be considered as "relevant
conduct" was 113.4 grams, defense counsel stated that "[o]ther than
challenging the hearsay nature of Mr. Murphy's quantities, we have not
attempted to establish a level and I don't know that I can quantify it
for you your Honor."
The district court found by a preponderance of the evidence that
the quantity of cocaine to be used for sentencing purposes was 1,270.5
grams. The court found that the testimony concerning Montoya's
transactions with Stanley and Murphy was reliable. The court further
stated that it was not persuaded by Drown's testimony.
5