United States v. AnglonUnited States v. Anglon
Case Information
*1 Not for publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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 *2
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 thе 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 аttributable 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 оf 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 сo-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 Deсember 10, 2001. The cocaine base alone accounted for 6,746 kilograms of the total drug quantity, determining *3 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. Becausе 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,
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 prepondеrance 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 disturbеd on appeal unless it is clearly erroneous.
United States v. May, 343 F.3d 1, 6 (1 Cir. 2003) (citations omitted).
Anglon's PSR reported that a search of his apartment and the basement to his аpartment building on December 10, 2001, resulted in the seizure of $7,000 in cash from Anglon's apartment *4 and quantities of cocaine, cocaine base and heroin from the basеment. 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 diffеrent 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 сonduct 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 schеme 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,
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 *5 that, in the sentencing phase of a criminal case, credibility choices are within the exclusivе province of the district judge." United States v. Conley, 156 F.3d 78, 85 (1 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 thаt 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,
II. Role in the Offense and Safety Valve The district court increased Anglon's base offense level *6 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 (1 st Cir. 1997). The
government bears the burden of proving by a preponderance of the
evidence that the defendant qualifies fоr 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,
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
*7
Mr. Paulino deliver ecstasy pills to Agent Cruz." He specified
that he had told co-defendant Juan Paulino to bring the ecstasy
pills tо 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 thе 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
sеntencing court's choice between them clearly erroneous. See
Cruz,
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 1 Cir. R. 27(c).