USCA1 Opinion
September 3, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2248
UNITED STATES,
Appellee,
v.
JORGE L. LaBRADA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Oakes,* Circuit Judge.
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J. Hilary Billings for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Richard S. Cohen, United States Attorney, and Timothy Wing,
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Assistant United States Attorney, were on brief for appellee.
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*Of the Second Circuit, sitting by designation.
Per Curiam. Jorge Labrada was charged in count I of a
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six-count indictment of conspiring with Rudolfo and Augustine
Benito to possess cocaine with intent to distribute. 21
U.S.C. 841(a)(1), 846. The other five counts charged
specific acts of distribution by one or more of the three.
Id. 841(a)(1). Labrada was named in two counts, one
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charging the sale of one ounce of cocaine on June 5, 1991,
and the other the sale of about 900 grams on July 15, 1991.
Labrada pled guilty to the June 5 count and the other counts
were dismissed at the government's behest.
After an extensive sentencing hearing, the district
court found that Labrada was part of an ongoing conspiracy
and that he had engaged in a common course of conduct that
made him responsible inter alia for both the June 5 sale and
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for the July 15 sale. These amounts together placed Labrada
well over the half kilogram figure corresponding to level 26
under the Sentencing Guidelines. U.S.S.G. 2D1.1(a)(3),
(c)(9)(1991). With a two level reduction for acceptance of
responsibility, this fixed the sentencing range at 63 to 78
months (in view of Labrada's category III criminal history).
The district court in October 1991 sentenced Labrada to 65
months in prison and six years of supervised release.
Labrada has now appealed his sentence, but given the
guidelines and our precedents there is almost nothing to his
arguments. Under U.S.S.G. 1B1.3(a)(2)(1991), as it stood
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at the time Labrada was sentenced on October 9, 1992, a
defendant convicted of drug distribution is also liable for
uncharged acts of distribution that were "part of the same
course of conduct or common scheme or plan" as the charged
act of distribution. This liability is subject to the caveat
that any conduct of others attributed to the defendant as
part of a conspiracy--"whether or not charged as a
conspiracy"--be "reasonably foreseeable" by the defendant.
U.S.S.G. 1B1.3, application note 1 (1991). (Thereafter,
the guideline was amended to state the foreseeability test in
the text of the guideline, see U.S.S.G. 1B1.3(a)(1)(B)
(1992), but this is merely a clarification.)
On appeal, Labrada does not argue that the July 15
transaction was not reasonably foreseeable. Rather, he
argues strenuously that he did not participate in the July 15
sale, was convicted only of the June 5 sale, and therefore
cannot be held liable for the July 15 sale. However, the
guidelines just cited provide that he can be held liable at
sentencing for other foreseeable transactions that are part
of the same conspiracy as the one for which he was convicted,
and our cases so hold. See United States v. Garcia, 954 F.2d
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12, 15 (1st Cir. 1992); United States v. Sklar, 920 F.2d 107,
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111 (1st Cir. 1990). Although Labrada's brief says in
passing that this is not constitutional, no supporting
argument is offered.
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Labrada cites us to United States v. Wood, 924 F.2d 399
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(1st Cir. 1991), but that case acknowledged the rules of
sentencing liability that we have just described (although it
found that one of the third-party transactions attributed to
Wood had not been shown to be part of the same conspiracy).
The case law in this circuit is sufficiently clear that we
have no reason to discuss cases from other circuits cited to
us by Labrada. Ultimately, we think this appeal is premised
on the belief that, at least prior to the November 1992
version of the guidelines, a defendant convicted of one act
of drug distribution could not be sentenced on the basis of
other acts of distribution that were part of the same
uncharged conspiracy. The belief is mistaken.1
Because the factual findings of the district court are
not assigned as error on the appeal, it is unnecessary to
discuss the evidence. However, out of an abundance of
caution, we have reviewed the extensive factual recitations
provided as background in both Labrada's brief and that of
the government. Whether or not Labrada is viewed as having
participated in the July 15 transaction--he was present but
his role is disputed--we think that the district court
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1Contrary to Labrada's brief, U.S.S.G.
1B1.3(a)(2)(1991), quoted above, does not require that the
uncharged acts that were part of the same conspiracy have
occurred during the offense of conviction; rather it requires
that the attributed acts and the offense of conviction be
part of the same conspiracy. Id.
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reasonably concluded that Labrada was engaged with the
Benitos in an extensive ongoing drug distribution conspiracy
and that the July 15 transaction was an integral part of that
scheme.
Affirmed.
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