USCA1 Opinion
April 26, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2067
UNITED STATES OF AMERICA,
Appellee,
v.
PHILIP PLOURDE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, 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 Pettine,* Senior District Judge.
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Tina Schneider, by Appointment of the Court, for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, and Jonathan R.
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Chapman, Assistant United States Attorney, were on brief for appellee.
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*Of the District of Rhode Island, sitting by designation.
COFFIN, Senior Circuit Judge. Appellant was convicted of
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conspiracy to possess with intent to distribute heroin and
possession with intent to distribute heroin, in violation of 21
U.S.C. 841(a)(1) and (b)(1)(c) and 21 U.S.C. 846. He
appeals on two grounds: first, that there was insufficient
evidence of conspiracy to support his conviction; and second,
that the district court erred in calculating his sentence by
underestimating the quantity of heroin appellant had for his
personal use. We conclude that neither claim succeeds.
Sufficiency of the evidence. We shall, of course, take the
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evidence and reasonable inferences therefrom in the light most
favorable to the verdict. United States v. Moran, 984 F.2d 1299,
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1300 (1st Cir. 1993). And we shall, without narrating the entire
series of events leading to this prosecution, allude to evidence
only insofar as the sufficiency issue requires.
Appellant, who bought heroin from Wilfredo Figueroa, a
Lawrence, Massachusetts supplier, and sold to a number of
customers in Maine, argues that the evidence proves only that he
was a mere customer of Figueroa. He makes the following points:
others bought in larger quantities from the supplier; the
supplier knew that appellant, who customarily consumed some
heroin at the time of purchase, had a serious addiction to the
drug; the supplier never requested appellant to sell for him or
discussed distribution with him or extended any credit to him;
and no drug distribution paraphernalia (such as scales or drug
ledgers) were found that could be attributed to appellant.
The contrary evidence, however, was cumulatively impressive.
This included: the continuity and duration of appellant's
dealings with Figueroa (at least five trips and fifty bags a week
for ten weeks); appellant's actual knowledge that some of the
heroin he bought from Figueroa was supplied by Soto, and inferred
knowledge of a third source of the heroin bought from Figueroa;
sales on a fairly steady basis to several identified customers in
Maine (Babbitt, Poland, Kierstead), as well as some customers not
identified but whose existence could be inferred; conversations
in which appellant revealed to Figueroa the prices he was
charging Maine buyers, apologized to Soto for "the people here in
Maine" who preferred another product to his, and in which he told
of future plans to sell heroin in Maine; the quantities purchased
by appellant, which were significantly in excess of any estimate
of appellant's own consumption; and, finally, the fact that,
although appellant was without income and living on workman's
compensation at the time, some $500 in cash was found in his
bedroom when he was arrested. This was sufficient evidence to
support both a jury determination that appellant had joined with
others in an agreement to distribute heroin and that he intended
to commit the substantive offense.
Calculation of drug quantity and base offense level. In
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determining appellant's sentence, the judge accepted the
conservative estimates of the total quantities of heroin involved
set forth in the Presentence Investigation Report (PSR), and
arrived at a total figure of 175.4 grams. Based on an average
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consumption of 25 bags per week, and applying appropriate weights
for the different time periods involved, the judge calculated
appellant's total consumption at 60.25 grams. Subtracting this
from 175.4 still left a net quantity of slightly over 115 grams.
Accordingly, the judge concluded that, even taking into account
appellant's personal heroin consumption, the relevant drug
quantity would be still be in excess of 100 grams. Thus,
regardless of whether or not the district judge excluded
appellant's personal heroin consumption in determining the
relevant drug quantity, his base offense level under U.S.S.G.
2D1.1(10) would be 26.
Appellant now claims that the evidence was that he consumed
an average of five to six bags a day, or 35 to 42 bags a week.
Cumulating these quantities at appropriate weights per bag, he
arrives at a personal use figure of 84.35 grams, which, when
deducted from the total quantity, would produce a net figure of
91.05 grams, and a base offense level of 24.
Even if, as appellant suggests, the trial court were
required to exclude the quantity of drugs he possessed for
personal use in calculating his base offense level under the
Sentencing Guidelines, see, e.g., United States v. Kipp, 10 F.3d
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1463, 1465-66 (9th Cir. 1993), this claim would fail. On the
merits, there is sufficient evidence on the record from which the
trial judge properly could conclude that appellant's personal use
was, on average, 25 bags per week, and therefore, in excess of
100 grams of heroin were involved in the offense conduct. And
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wholly apart from the merits of the claim, this issue has not
been preserved for review.
To begin, appellant's testimony at trial as to his
consumption was something less than certain. He testified that
after getting out of a treatment program in October 8, 1991, he
felt "pretty good," but that by the beginning of November, he
"ended up using again." At this time, he bought one bag at a
time, and got high once every four or five days, and then, by
mid-November, three or four times every week. He also testified
that at the time of his arrest in August 1992, "maybe" he used
five bags a day.
In addition, the evidence showed that appellant bought
fluctuating amounts of heroin over time, and that during the
course of the conspiracy, he spent two separate periods of time
in a substance abuse treatment program, in an effort to treat his
heroin addiction. This evidence suggests that appellant's
personal consumption likely could have varied relative to the
amount of heroin available to him, and to his efforts at
rehabilitation. Finally, the PSR stated that "[p]rior to his
arrest, the defendant reports that his habit involved using up to
20 bags of heroin a week." Based on all of this evidence, the
district judge fairly could conclude that an average of 25 bags
per week was representative of appellant's average consumption
over time.
In any event, appellant has waived this claim. He raised no
objection to the PSR's estimate that he had "up to" a 20 bag per
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week habit. Even more important, at the sentencing hearing,
appellant made no suggestion that the judge had erred in his
calculations as to appellant's personal consumption -- a subject
that the judge himself had introduced. We note, in addition,
that at oral argument before us, appellant's counsel contended
that anyone with a habit requiring five bags a day could not get
by on 25 bags a week because he could not "take off two days a
week." But at the sentencing proceeding, trial counsel for
appellant, in an effort to minimize the total quantity involved,
argued that when appellant "couldn't make the five bag a day
habit which his cross-examination in trial showed he simply
stayed home and suffered." The judge was obviously committing no
error, clear or otherwise, in harboring the same assumption.
Finally, at the conclusion of the sentencing hearing, the
judge asked for any corrections. Counsel for both prosecution
and defense expressed themselves as satisfied.
We conclude by observing that no injustice has been done in
this case. The court, by accepting conservative estimates of
total quantities involved, which were substantially below those
justified by some of the testimony, has been most fair to
appellant.
Affirmed.
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