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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________
No. 92-2124
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO REYES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Feinberg,* Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_____________________
Randy Olen, by Appointment

of the Court, with whom

John M.

__________
_______
Cicilline, was on brief for appellant.
_________
Margaret E. Curran, Assistant United States Attorney, with
__________________
whom Lincoln C. Almond, United States Attorney and Kenneth P.
__________________
___________
Madden, Assistant United States Attorney, were on brief for
______
appellee.

____________________
August 30, 1993
____________________
____________________
*

Of the Second Circuit, sitting by designation.

TORRUELLA,
agreement,

Circuit
Judge.
_______________

defendant-appellant Pedro

count of conspiracy to
distribute

Pursuant
Reyes pled

to

guilty to

distribute and to possess with

plea

one

intent to

cocaine and one count of distribution of cocaine.

In

this appeal, Reyes challenges the district court's calculation of

his guideline sentencing range ("GSR"), contesting the inclusion,


as relevant conduct, of
which

transactions involving his

were the subject of

agreement.

charges dropped pursuant

Finding no clear error, we affirm.

codefendant,

to the plea

I
I
_
Because Reyes

pled

guilty, we

distill

the

facts from the Pre-Sentence Report ("PSR") and the


the sentencing hearing.
21,

22 (1st

Tolentio

United States
_____________

Cir. 1993).

("Tav rez")

Reyes

were

the

relevant

transcript of

v. Castellone, 985
__________

and codefendant
subjects

of

Jos

F.2d

Tav rez-

combined

Drug

Enforcement Administration ("DEA") and local law enforcement drug


investigation.
On

the

evening

of

Monday, January

27,

1992,

West

Warwick detective Sergeant Peter Appollonia met Tav rez outside a


building at 61 Whipple
two

men proceeded

Reyes.

second floor

Electric Company records

apartment.
grams

to a

Street in Providence, Rhode Island.

of

Once inside, Tav rez


cocaine

from

the

apartment where

a future

sale of

they met

indicate that Reyes leased the


produced a bag containing

bathroom;

negotiated the price of this transaction


for

The

two ounces of

Reyes

and

27.4

Appollonia

and a quantity discount

cocaine.

Appollonia then

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inquired if he

could purchase

the two ounces

on Wednesday

and

Reyes told Appollonia


concluded

to come

by at anytime.

The

transaction

when Appollonia paid Reyes $900 for the 27.4 grams and

Reyes counted the money.


The
Botelho

met

Providence.

next

day, January

Tav rez

at 1455

1992,

Mineral

as "Tony."

cocaine and Botelho paid

DEA Special

Spring

Tav rez brought Botelho to

they met a man known


of

28,

Avenue

Agent

in North

apartment sixteen where

Tav rez gave Botelho

him $3,100.

124 grams

Shortly after Botelho

entered the building on Mineral Street, DEA agents observed Reyes


drive

his BMW,

accompanied by

Whipple Street address to

a grey

Oldsmobile, from

his 61

the building on Mineral Street.

When

the two vehicles arrived, the Oldsmobile proceeded to the rear of


the

building.

Reyes

parked nearby, exited

around the parking lot


and returned

to his

adjacent to the Mineral Street


car where

he waited.

transaction between Botelho and


the

Oldsmobile departed

Street.

The

DEA

his vehicle, walked

the

Shortly

building,

before the

Tav rez was completed, Reyes and


area and

interpreted

returned

Reyes'

actions

to 61

Whipple

as

counter-

surveillance for the deal occurring above in apartment sixteen.


On

Saturday,

February

1,

1992,

5:30 p.m., detective Appollonia returned


purchase more
Escort

cocaine.

He

directed Appollonia to
would have the cocaine.

at which

Reyes then departed.


-3-

entering a

had cocaine for

return later,

approximately

to 61 Whipple Street to

encountered Reyes

and inquired whether Reyes

at

sale.

time he,

Ford

Reyes

Reyes,

At approximately

6:00

p.m., Reyes

followed

by

returned

the

grey

Appollonia returned
floor

apartment.

apartment

to 61

Whipple

Oldsmobile, and

at 6:07 p.m. and


Reyes

was not

and returned with

set

representing the

negotiated.

Tav rez

the second
left

the

Appollonia

Tav rez that the

that

BMW,

building.

Tav rez
cocaine.

quantity

indicated

his

the

met Tav rez in

54.9 grams of

Reyes had informed

$1,700,

entered

present.

inquired whether
at

Street in

price was

discount previously

Reyes

had

done

so.

Appollonia paid for the cocaine and left the premises.


On

Monday,

February 10,

p.m., agent Botelho returned


cocaine.

approximately 1:15

to 1455 Mineral Street to

He met Tav rez, who

half ounces of cocaine.

1992, at

agreed to sell him

buy more

four and one-

Tav rez left Mineral Street and drove in

a red Toyota wagon registered to Reyes to 61 Whipple Street.

Approximately 35 minutes later, Tav rez returned to the


Mineral

Street

address.

inspecting Botelho's car,


Tav rez again

Botelho

observed

which was parked in the

Reyes

adjacent lot.

met with Botelho and claimed that he would have to

go to South Providence to obtain the cocaine.


second time, and
Street.

Tav rez and

the Toyota and

Tav rez departed a

Reyes' BMW went

DEA agents observed Tav rez,

to 61

Whipple

Reyes and an unidentified

man

entering the

building.

Tav rez then

Street with 124.1 grams of cocaine.


and

Tav rez was

arrested.

returned

to Mineral

Botelho alerted other agents

Later,

Reyes

was arrested

at

61

Whipple Street, where the police found .18 grams of cocaine.


Count

one

charged

that

from a

time

unknown

until

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February 10, 1992, Reyes and Tav rez conspired to distribute, and

to possess with intent to distribute, cocaine, in violation of 21


U.S.C.
Reyes

841(a)(1) and 846.

Counts two, three, and four charged

and Tav rez with distribution of cocaine on January 27 and

28, and February 1, 1992, in violation of 21 U.S.C.


841(b)(1)(B), and
Tav rez

18 U.S.C.

possessed

February 10,

1992,

cocaine
in

with

violation

841(b)(1)(C), and 18 U.S.C.


and two and the

2.

2.

Count five
intent
of 21

to

841(a)(1),

charged Reyes and


distribute

U.S.C.

it

on

841(a)(1),

Reyes pled guilty to counts one

government dropped the charges in

counts three,

four, and five.


At sentencing,
based

the district court

determined the

GSR

on the quantity of drugs involved in all the transactions,

including amounts related to the

dropped charges.

The

quantity

therefore was

330.58 grams,

level of 22.

United States

(Drug Quantity Table).


downward

by

two

U.S.S.G.

3E1.1(a).

history category of

which resulted

in

a base

Sentencing Guidelines

offense

2D1.1(c)(11)

The judge adjusted the base offense level

levels

for

acceptance

of

With an offense level of 20


I, the GSR was 33

responsibility.

and a criminal

to 41 months.

The judge

sentenced Reyes to 33 months.


On appeal,

Reyes contests the calculation

arguing that he should


cocaine involved in the
guilty.
14,

be sentenced based

an

on the 27.4 grams

January 27 transaction to which

Based on a 27.4 grams,

yielding

of the GSR,

offense

of

he pled

the base offense level would be

level

of

12

after

reduction

for

-5-

acceptance of responsibility.

Reyes contends therefore that the

GSR ought to have been 10 to 16 months.


II
II
__
For
quantity of
charged

the purposes of sentencing,


drugs involved.

conduct to

That quantity

which defendant

the key factor is the


is "the sum

pleads plus

of the

his 'relevant'

uncharged

conduct."

(1st Cir.

1990).

acts

'that were

scheme or plan
Garc a,
______

954

1B1.3(a)(2)).

criminal

"The drug

quantity is to be

part of the

same course

F.2d 12,

15 (1st

or common

United States v.
_____________

1992) (quoting

U.S.S.G.

"This court has repeatedly upheld the inclusion as


of

acts

either not

Id. (citing cases).


___
activity

(whether or

defendant and committed in


U.S.S.G.

charged

or

charged

but

In the case of jointly undertaken

relevant conduct includes all

activity.

Cir.

derived from all

of conduct

as the offense of conviction.'"

relevant conduct
dropped."

United States v. Bradley, 917 F.2d 601, 604


_____________
_______

not

charged

as a

conspiracy),

acts reasonably foreseeable by the

furtherance of the jointly undertaken

1B1.3, comment. (n.1); Castellone, 985 F.2d


__________

at 24; Garc a, 954 F.2d at


______

15.

To include disputed transactions

as relevant conduct, the government must prove by a preponderance

of the evidence a sufficient nexus between the conduct underlying


the

dropped charges and the

985 F.2d
Cir.

at 24; United States


_____________

1990).

court's

offense of conviction.

We accord

v. Sklar, 920 F.2d


_____

considerable deference to

determination that drug

form part of the

107, 110 (1st

the district

transactions in dropped charges

same course of conduct as


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Castellone,
__________

counts of conviction

and, absent mistake of law, will set aside those findings only if
clearly

erroneous.

Castellone, 985 F.2d at 24; Garc a, 954 F.2d


__________
______

at 15.
Reyes
preponderance
charges

of

contends that the government


of the

evidence

convictions

physically

present

a sufficient

nexus between

January

February

and the

February 10, 1992 transactions.


during

did not prove by a

28,

the

1, and

Reyes emphasizes that he was not

these

transactions

and

that

the

district court found that Tav rez operated his own heroin concern
without

Reyes'

participation.

Reyes

asserts

heroin business, Tav rez was distributing cocaine


knowledge

and

in

furtherance

of

only

that, like

the

without Reyes'

Tav rez'

individual

interests.
With respect to the February
drug

deals, Reyes'

assertions are

1, and February 10,

ridiculous.

To

1992

begin with,

Reyes indicated at the January 27, drug sale, to which Reyes pled
guilty,

that

detective

purchase cocaine.
cocaine

could come

by

anytime

to

The natural inference is that Reyes operated a

distribution

Appollonia encountered
address,

Appollonia

business.
Reyes outside

On

February
Reyes'

and asked to purchase cocaine.

1,

detective

61 Whipple

Street

Reyes asked Appollonia

to

return

later

when the

building and returned.

cocaine

arrived.

Reyes left

Moments later, Appollonia entered Reyes'

second floor apartment and purchased cocaine from Tav rez.


was

not observed leaving the building.

fairly infer that Reyes

the

Reyes

The district judge could

had brought the cocaine back

to Whipple

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Street, allowing Tav rez to conduct the actual sale.


The
Reyes.

February 10

Although

the

transaction
drug

buy

enforcement agent, Botelho, and

is

similarly linked

involved

different

to

law

occurred at a different address,

1455 Mineral Street, Tav rez drove a vehicle

registered to Reyes

to Reyes' apartment; returned with Reyes to Mineral Street, where


the

two observed

again returned

Botelho's

to Whipple

vehicle and

the surrounding

Street with Reyes;

and finally

back to Mineral Street to sell Botelho the cocaine.


of
sale

actions supports an inference


with Reyes,

Mineral

that

Street before

the two

that Tav rez had


conducted

proceeding, and

area;

This series

to clear the

an investigation

that Reyes

went

of

provided the

cocaine from the Whipple Street address.


The

evidence

connecting

Reyes

to

the

January

28

transaction admittedly is less


the

convincing.

When considered with

three other drug deals, however, we cannot conclude that the

district court's

inclusion of this evidence

was clearly erroneous.


inference
cocaine

that
sales

The

Reyes

that Reyes

reconnaissance mission
visit

other three transactions support the

Tav rez and


and

as relevant conduct

worked

was

during the

paid to the parking lot at

the

closely together
supplier.

on

Given

the

February 10 transaction,

the

Mineral Street by Reyes in his

BMW and the grey Oldsmobile during the January 28 deal would also
appear to be surveillance.
infer

from

all the

The district court could

evidence

that the

conduct

reasonably

underlying the

dropped charges formed part of the same course of conduct.

As we

-8-

made clear in United States v. Ruiz, 905 F.2d 499,


_____________
____
1990),

"where there

circumstances,

is

more than

the sentencing

alternatives cannot

be clearly

one

508 (1st Cir.

plausible view

court's choice
erroneous."

Finding no clear error, we affirm.

the

among supportable
The

therefore was entitled to include the quantities


all the transactions when determining the GSR.

of

district court

of cocaine from

______

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