Filed: Feb. 04, 2002
Latest Update: Feb. 21, 2020
Summary: 20 distribution.because if this prior conviction counts, then Castro's criminal, history category is III, which yields a sentencing range of 87, to 108 months, but if this conviction does not count, then, Castro's criminal history category is II, which yields a, sentencing range of 78 to 97 months.
United States Court of Appeals
For the First Circuit
____________________
No. 01-1850
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY CASTRO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
____________________
Before
Lynch and Lipez, Circuit Judges,
and Woodlock,* District Judge.
____________________
Owen S. Walker, Federal Defender Office, for appellant.
David Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for appellee.
____________________
* Of the District of Massachusetts, sitting by designation.
February 4, 2002
____________________
LYNCH, Circuit Judge. After pleading guilty to
conspiring to possess crack cocaine with intent to distribute,
appellant, Anthony Castro, was sentenced to 87 months, or more
than seven years, in prison. Castro concedes that he
participated in several crack deals, but objects to his 87-month
sentence on two grounds. First, he argues that the district
court incorrectly calculated the drug quantity on which his
sentence was based because, in one of the deals involving 11.6
of the 35.039 grams of crack attributed to him, he acted to
assist the buyer, not the seller, and so he says he cannot
lawfully be sentenced for the distribution of the 11.6 grams.
Second, Castro objects to the district court's consideration of
his probation sentence for a prior state crime when calculating
his criminal history. Castro says that the alternative to this
state probation sentence was not incarceration and so, under the
federal guidelines, it is not "probation" of the type that can
affect one's criminal history.
We reject the argument that one who acts as the buyer's
agent in facilitating a drug deal may not have the drug quantity
from that sale attributed to him as relevant conduct. Under
U.S.S.G. § 1B1.3(a)(1)(A) and 21 U.S.C. § 846, Castro may be
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punished not merely for selling drugs, but more generally for
facilitating their distribution and delivery. We also reject
the second argument, based on Castro's state probation sentence,
as inconsistent with the clear language of U.S.S.G. §
4A1.2(c)(1)(A), which counts any prior sentence of probation of
at least one year. Finding Castro's arguments to be meritless,
we affirm his sentence.
I.
This case involves the unfortunate story of Anthony Castro
who, along with his grandmother, his father, and others,
participated in distributing crack cocaine to undercover DEA agents in
Fitchburg, Massachusetts. Castro became addicted to the drugs he
distributed. During a several month period in 1999, Castro was
involved in at least twelve crack sales to undercover federal agents.
Castro's role differed from sale to sale; in some cases he was the
primary seller, in other cases he merely provided assistance by
introducing the agents to other sellers or by acting as an
intermediary.
One sale in particular is important to Castro's argument.
On October 20, 1999, Castro was involved in the distribution of what
turned out to be 11.6 grams of crack. Castro says that, by October, he
was no longer dealing crack. Instead, he had turned to using the drug
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and had become severely addicted. Castro admits that he participated
in the October 20 distribution, but claims his participation was
limited to assisting the buyer (a federal agent, unbeknownst to Castro)
find the best priced crack in town. (Castro was attempting to make
a small profit by charging the buyer a fee in return for
providing him with connections to dealers offering the lowest
prices.) In the process of doing so, Castro was present during a
transaction between the undercover agent and Robert Rodriguez, a seller
with whom Castro admits he was at one point allied. During this
transaction, Castro translated price and quantity terms from Spanish to
English and from English to Spanish, thereby facilitating the
distribution of 11.6 grams of crack.
A grand jury eventually returned a number of
indictments, most of which charged multiple defendants with
numerous counts of drug distribution in Fitchburg. After Castro
entered into a plea agreement, the government dismissed the
indictments against him, and he pled guilty to a one-count
superceding information charging him with conspiring to possess
crack cocaine with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1) and 846.
When Castro was sentenced for this crime, the district
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court held him accountable for 35.039 grams of crack, which
under U.S.S.G. § 2D1.1(c)(5) yields a base offense level of 30.
After a three-point reduction for acceptance of responsibility,
U.S.S.G. § 3E1.1, Castro had an offense level of 27. The district
court awarded Castro two criminal history points for two prior
convictions. One of these two prior convictions was for disorderly
conduct, an offense for which Castro was sentenced to one year of
probation. The district court awarded Castro an additional two points,
under U.S.S.G. § 4A1.1(d), for committing the instant offense while on
probation. Four criminal history points translate to a criminal
history category of III and, with an offense level of 27, a
sentencing range of 87 to 108 months. Because Castro was
accountable for 35.039 grams of crack, just over the 35-gram
cut-off, the court sentenced him to 87 months, which was the
lowest available sentence within the guidelines range.
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II.
Our review of legal questions concerning the district
court's application of the guidelines is de novo. United States
v. Caraballo, 200 F.3d 20, 24 (1st Cir. 1999). Our review of
factual findings is for clear error.
Id.
A.
First, Castro argues that the drug quantity on which
his sentence was based was incorrectly calculated because it
included 11.6 grams from the October 20 transaction. Castro
claims that during that transaction, he intended solely to help
the buyer, a federal agent, rather than the seller, Rodriguez.
It is undisputed that he sought to introduce the agent to
sellers other than Rodriguez, which was against Rodriguez's
interest. Castro concedes that he facilitated the 11.6 gram
transaction; his only argument is that he facilitated the
purchase and not the sale. The district court found that Castro
facilitated the transaction and concluded that it did not matter
whether Castro was acting as an agent of the buyer or as an
agent of the seller. We agree.
We think the aggregation of the drug quantities for the
transactions involving facilitation by Castro fits comfortably
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as relevant conduct within the scope of U.S.S.G. §
1B1.3(a)(1)(A). Under subsection (a)(1)(A), the question is
whether the distribution was an act "committed, aided, abetted,
. . . or willfully caused by" Castro "that occurred during the
commission of the offense of conviction." Castro was convicted
under 21 U.S.C. § 846 for conspiracy to violate 21 U.S.C. §
841(a)(1), which renders it "unlawful for any person knowingly
or intentionally . . . to . . . distribute, . . . or possess
with intent to . . . distribute, . . . a controlled substance."
A defendant can be found to have aided or abetted distribution
if the defendant "associated himself with the underlying
venture, participated in it as something he wished to bring
about, and sought by his actions to make it succeed." United
States v. Rullan-Rivera, 60 F.3d 16, 19 (1st Cir. 1995) (quoting
United States v. Clifford,
979 F.2d 896, 899 (1st Cir. 1992))
(internal quotation marks omitted).
There is no question that Castro aided or abetted the October
20 distribution. Castro told the buyer that Rodriguez would get the
crack right away and asked the buyer, on Rodriguez's behalf, if the
buyer had the money to purchase the crack. He also interpreted the
Spanish conversation between Rodriguez and another seller and advised
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the buyer that the crack would weigh sixteen or seventeen grams. On
these facts, the 11.6 gram possession with intent to distribute was
properly attributed to Castro under subsection (a)(1)(A).1
Castro responds that his participation in the distribution
was limited to aiding the buyer. Castro's "buyer's agent" defense has
long been rejected by this and other circuits as a defense to drug
distribution under 21 U.S.C. § 841(a)(1). United States v. Porter,
764 F.2d 1, 10-12 (1st Cir. 1985) (collecting cases); accord United
States v. Pruitt,
487 F.2d 1241, 1243 (8th Cir. 1973) (collecting
cases); see also Minor v. United States,
623 A.2d 1182, 1186 (D.C. App.
1993) (noting "uniform agreement among the federal courts" that the
"agent of the buyer" defense does not exist under § 841(a)(1)).
Section 841(a)(1) contains a broad prohibition on distribution
rather than a narrow one on sale, and so it does not matter that
1 The October 20 distribution was a "reasonably
foreseeable act[ ] . . . in furtherance of [a] jointly
undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(B). Thus
Castro is also liable for that transaction under subsection
(a)(1)(B) because the October 20 transaction was obviously
foreseeable by Castro (indeed, he actively participated in it)
and in furtherance of an ongoing conspiracy to distribute crack.
Because, however, the transactions for which Castro was held
liable involved substantive distributions which he personally
facilitated (rather than planned transactions or transactions by
other conspirators while he was a member of the conspiracy) we
think treatment as an aider and abetter under subsection
(a)(1)(A) is a better analytical fit.
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Castro sought to help the buyer rather than the seller when he
facilitated the distribution. The relevant statute makes this point
explicitly: it defines "distribute" as "to deliver," 21 U.S.C. §
802(11), and it defines "deliver" as "the actual, constructive, or
attempted transfer of a controlled substance . . . whether or not there
exists an agency relationship," id. § 802(8) (emphasis added).
Accordingly, it is enough that Castro participated in the transfer of
crack cocaine from Rodriguez to the undercover agent. Regardless of
whether Castro was acting to help the buyer or the seller, he
facilitated the transfer of the drug and that is sufficient to expose
him to liability for that transaction for sentencing purposes.2
B.
Second, Castro objects to the district court's
consideration of his probation sentence for a prior disorderly
2 In contrast, under former 26 U.S.C. § 4705(a) (repealed
1970), the law prohibited sale of certain drugs, rather than
distribution, and so acting solely as an agent for the buyer was
sometimes a valid defense to a charge of selling. United States v.
MacDonald, 455 F.2d 1259, 1261 (1st Cir. 1972); United States v.
Barcella,
432 F.2d 570, 571 (1st Cir. 1970). The Comprehensive Drug
Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat.
1236 (codified as amended at 21 U.S.C. §§ 801-971 and in scattered
sections of titles 18, 21, and 42), which repealed the subchapter of
the Code including 26 U.S.C. § 4705, prohibits distribution. 21 U.S.C.
§ 841(a)(1). The prohibition on distribution is broader in scope than
the former prohibition on sale -- the claim that one acted on the
buyer's behalf is not relevant to the charge that one participated in
a distribution.
Porter, 764 F.2d at 11; accord
Pruitt, 487 F.2d at
1245.
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conduct conviction when calculating his criminal history.3 He
says that violation of his probation sentence could not have
resulted in jail time under state law and so, under the
guidelines, it is not "probation" of the type that can affect
one's criminal history. The district court concluded that,
under the clear text of U.S.S.G. § 4A1.2(c), the offense was
properly scored. We agree.
Massachusetts law provides that "idle and disorderly
persons, [and] disturbers of the peace . . . may be punished by
imprisonment . . . for not more than six months, or by a fine of
not more than two hundred dollars, or by both." Mass. Gen. Laws
ch. 272, § 53 (2000). Nonetheless, Castro says his one year probation
sentence was not an alternative to jail time because when he first
appeared in state court on his disorderly conduct charges, the judge
declined to appoint counsel4 and informed him that his sentence would
3 Whether the court considers Castro's disorderly conduct
conviction as a prior conviction for purposes of computing his
criminal history under the guidelines is important, he says,
because if this prior conviction counts, then Castro's criminal
history category is III, which yields a sentencing range of 87
to 108 months, but if this conviction does not count, then
Castro's criminal history category is II, which yields a
sentencing range of 78 to 97 months.
4 It may be that counsel did in fact represent Castro
before he actually received his probation sentence and so he
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not include any jail time. The judge applied Mass. Gen. Laws ch. 211D,
§ 2A (2000), which provides that
a criminal defendant charged with a misdemeanor or a
violation of a municipal ordinance or bylaw need not
be appointed counsel if the judge, at arraignment,
informs such defendant on the record that, if the
defendant is convicted of such offense, his sentence
will not include any period of incarceration. For
good cause, that judge or another judge of the same
court may later revoke such determination on the
record and appoint counsel, and on the request such
counsel shall be entitled to a continuance to conduct
any necessary discovery and to prepare adequately for
trial.
Castro then says that probation, as defined by a single
dictionary, is a sentencing alternative to jail and that, because jail
was not an option, he was not sentenced to "probation" as the term is
sometimes defined. Castro also points to U.S.S.G. § 4A1.1, application
note 4, which states that probation counts as a criminal justice
sentence but a sentence to pay a fine does not. He says that it would
be absurd for his probation to count toward his criminal history when
the more severe sentence to which he might have been subject under
Mass. Gen. Laws ch. 272, § 53, was a two hundred dollar fine, which
would not be counted.
The clear text of the guidelines defeats Castro's argument.
Under U.S.S.G. § 4A1.2, which provides instructions for computing
could have received jail time. For purposes of the issue here,
we need not resolve the matter.
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criminal history, sentences for disorderly conduct are counted toward
one's criminal history only if "the sentence was a term of probation of
at least one year or a term of imprisonment of at least thirty days"
(or if the instant offense is similar to the prior disorderly conduct
offense). U.S.S.G. § 4A1.2(c). Castro's disorderly conduct conviction
resulted in a sentence of "probation of at least one year" and so the
district court correctly counted it. We will not rewrite the text of
the guidelines where, as here, the Commission has expressed a clear
intent to count sentences to probation of at least one year as
criminal history. See United States v. Talladino, 38 F.3d 1255,
1265 (1st Cir. 1994).
In addition, it is not absurd to count disorderly
conduct convictions that result in probation sentences of at
least one year, but to refrain from counting similar convictions
that result only in a fine. The "at least one year" requirement
imposed by the guidelines, U.S.S.G. § 4A1.2(c)(1)(A), reflects
a plausible determination that disorderly conduct convictions
resulting in at least one year of probation are the type of
convictions that are sufficiently serious to be included in
one's criminal history, while such convictions, should they
result only in a fine, are not. The supervisory element of a
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one year probation sentence alone could be deemed more severe
punishment than a fine and thus it would be sensible to count a
one year probation sentence and not a fine.
Finally, the factual premise of Castro's argument is flawed.
Castro argues that because the court invoked Mass. Gen. Laws ch. 211D,
§ 2A, at his arraignment, he could not receive a prison sentence as an
alternative to his probation. But Castro could have received a prison
sentence; by engaging in disorderly conduct, he exposed himself to a
fine or jail time. Mass. Gen. Laws ch. 272, § 53. That the judge
chose not to appoint counsel, thereby removing the prison
option,5 id. ch. 211D, § 2A, does not detract from the fact that at
the time Castro was charged, probation, a fine, and jail time
were all potential sentences. The "absurdity" Castro attempts to
construct does not materialize because the potential alternative to
Castro's probation was not merely a fine, but also included the
possibility of a jail sentence of not more than six months under
5 Even after the state court invoked § 2A, prison remained a
possibility for Castro. Section 2A, in a part ignored by Castro,
states that
[a] judge . . . may later revoke such determination [of
ineligibility for prison] on the record and appoint counsel, and
on the request such counsel shall be entitled to a continuance to
conduct any necessary discovery and to prepare adequately for
trial.
Mass. Gen. Laws ch. 211D, § 2A (emphasis added).
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Mass. Gen. Laws ch. 272, § 53.
III.
For these reasons, the sentence is affirmed.
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