USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 94-1830
UNITED STATES,
Appellee,
v.
MARK H. SHRADER,
Defendant, Appellant.
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No. 94-2002
UNITED STATES,
Appellee,
v.
RICKY GAGNON,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Tony F. Soltani, with whom Soltani Law Office was on brief for
________________ __________________
appellant Mark H. Shrader; Jonathan R. Saxe, with whom Twomey & Sisti
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Law Offices was on brief for appellant Ricky Gagnon.
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Jean L. Ryan, Assistant United States Attorney, with whom Paul M.
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Gagnon, United States Attorney, was on brief for appellee.
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May 23, 1995
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BOWNES, Senior Circuit Judge. In this appeal,
BOWNES, Senior Circuit Judge.
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defendants-appellants Mark Shrader and Ricky Gagnon challenge
the sentences imposed upon them after they pleaded guilty to
conspiring to possess marijuana with the intent to distribute
it. Having carefully reviewed the record and considered
defendants' arguments, we affirm.
I.
I.
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The facts, which are derived from the presentence
investigation reports and oral and documentary evidence
introduced at the sentencing hearings, are as follows.
In late 1991 or early 1992, Gagnon, then a Colorado
resident, met with two co-conspirators -- Lee Zahler and
Robert Audette -- at Bea's Restaurant in Epping, New
Hampshire. Knowing that Gagnon had previously distributed
marijuana in New Hampshire, Audette queried Gagnon about
marijuana availability. Gagnon responded that, in Colorado,
Audette could obtain large quantities of marijuana for a low
price.
In February 1992, Zahler and Audette flew to
Denver, Colorado. Gagnon picked them up at the airport and
eventually took them to his residence in Aurora, Colorado,
where they examined seventeen pounds of marijuana. Ten to
twelve pounds of this marijuana were high quality; the rest,
however, was moldy. Zahler expressed displeasure with the
overall quality and theprice of the marijuana hehad examined.
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At some point, Shrader -- Gagnon's supplier --
showed up at the Aurora residence. Gagnon introduced him to
Zahler and Audette as "Mark" and "Bandido Mark." Shrader's
nickname stemmed from his association with the Bandidos
Motorcycle Club. After Zahler informed Shrader of his
displeasure with the price of the marijuana he had seen,
Shrader told Zahler he would have to go to Texas -- the point
of origin for the marijuana Shrader's associates were
bringing into Colorado -- if he wanted it any cheaper.
Zahler and Audette then discussed with Shrader the
possibility of their purchasing fifty pounds of marijuana in
Texas. They agreed that the Texas transaction would be
"middled" by Gagnon, who knew Shrader's last name and how to
reach him. Zahler and Audette also agreed to purchase the
seventeen pounds of marijuana they had already examined.
Subsequently, they concealed it in a couple of stereo
speakers and shipped it back to New Hampshire. Gagnon
received $850 for putting the deal together. Thereafter,
Zahler and Audette returned home.
Later that month, Gagnon called Zahler and
confirmed that Shrader could and would deal with Zahler and
Audette in Texas. On March 4, 1992, Zahler and Audette flew
to Austin, Texas, checked into the Radisson Plaza Hotel, and
called Gagnon to let him know where they were staying. Later
that same day, Shrader came to the hotel in order to view the
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$40,000 Zahler and Audette had brought with them in order to
complete the fifty-pound deal discussed in Aurora. The deal
was scheduled for the next day. Zahler became concerned,
however, when he learned that, on the following day, there
also would be a law enforcement convention at the Radisson
Plaza. He and Audette therefore moved to a Holiday Inn.
Because he had no other way to contact Shrader, Zahler called
Gagnon in Colorado and informed him of his and Audette's new
location. Despite the move, Audette's anxiety level
increased and he flew back to New Hampshire.
At 6:00 p.m. on that same evening, Shrader showed
up at the Holiday Inn with a marijuana sample. Zahler
rejected it as low-quality. Shrader told him he could
procure better marijuana, but that it would take some time.
Shrader also told Zahler of his association with the
Bandidos, and that the source of the marijuana was the
president of the Bandidos' local chapter. Over the next
couple of days, ten telephone calls were placed from Gagnon's
Aurora, Colorado, residence to the Holiday Inn at which
Zahler was staying. In addition, four calls were placed from
Zahler's room to Gagnon's home in Aurora. Most of these
calls were of short duration.
On March 7, 1992, Zahler purchased thirty-five
pounds of marijuana from Shrader and four other men. The
sale took place at the Holiday Inn. Zahler paid Shrader
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$31,500 in cash, of which Shrader took $3,200 for himself.
One of the four other men present at the sale -- the one who
carried the duffel bag of marijuana into Zahler's room -- was
wearing Bandidos paraphernalia. Shrader accompanied this man
into Zahler's room. Zahler subsequently shipped the thirty-
five pounds of marijuana to an acquaintance in Haverhill,
Massachusetts.
On August 25, 1993, a federal grand jury returned
an indictment against Shrader, Gagnon, and six others. Inter
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alia, the indictment charged Shrader and Gagnon with
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conspiring to possess marijuana with the intent to distribute
it. 21 U.S.C. 846. On December 1, 1993, the grand jury
returned a superseding indictment against Shrader and seven
others (including one of the original six co-defendants). On
December 8, 1993, Gagnon pleaded guilty to the conspiracy
charge. On March 1, 1994, Shrader followed suit.
A. Shrader's Sentencing
A. Shrader's Sentencing
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On July 15, 1994, the district court sentenced
Shrader. The court assigned Shrader a base offense level
("BOL") of eighteen based upon the fifty-two pounds of
marijuana involved in the two deals. See U.S.S.G. 2D1.1(c)
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(November 1, 1993) (drug quantity table). The court then
added two levels because it determined that Shrader was a
manager/supervisor of the offense, see 3B1.1(c), subtracted
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two levels for acceptance of responsibility, see 3E1.1(a),
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and arrived at a total offense level ("TOL") of eighteen.
Shrader's criminal history, which included, inter
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alia, five driving-while-intoxicated ("DWI") convictions,
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dictated that he be assigned a criminal history category
("CHC") of III. This assignment did not, however, take into
account two of the DWI convictions and one careless driving
conviction which involved Shrader's use of alcohol; nor did
it take into account the fact that Shrader was arrested again
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for DWI (and for criminal mischief) after his guilty plea but
prior to sentencing in this case, and that, in revoking
Shrader's bail, the federal district court had found probable
cause to believe that Shrader had driven while intoxicated.
See 4A1.1(c) (capping at 4 the number of CHC points to be
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assigned for previous sentences of less than sixty days).
The record reflects that, in connection with prior sentences,
Shrader had been ordered to complete substance abuse
rehabilitation programs on at least three occasions.
Taking note of the uncounted conduct, the court
decided to depart upward because Shrader's CHC significantly
understated both his criminal history and his predisposition
towards recidivist behavior. See 4A1.3 (endorsing upward
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departures where the CHC "significantly under-represents the
seriousness of the defendant's criminal history or the
likelihood that the defendant will commit further crimes").
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Following the procedure prescribed in 4A1.3, the court
found that Shrader's criminal history most closely resembled
that of a defendant with a CHC of IV. It then sentenced
Shrader at the upper end of the guideline range applicable to
a defendant with a TOL of eighteen and a CHC of IV: fifty-
one months' imprisonment.
B. Gagnon's Sentencing
B. Gagnon's Sentencing
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On August 31, 1994, following a two-day hearing at
which Gagnon testified that he was involved in the Colorado
transaction but not the Texas transaction, the district court
sentenced Gagnon. Relying on affidavits submitted by Zahler
and Audette which stated that Gagnon had middled the Texas
transaction, testimony from New Hampshire State Trooper
Robert Quinn which, inter alia, vouched for Zahler's and
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Audette's credibility and rebutted Gagnon's testimony that he
was never involved in any drug deals other than the one in
Colorado, and documentary evidence of the phone calls between
Gagnon's Aurora residence and the hotels in Austin at which
Zahler and Audette stayed, the court rejected Gagnon's claim
regarding the Texas transaction.
The court therefore assigned Gagnon a BOL of
eighteen based upon the fifty-two pounds of marijuana
involved in the two transactions. The court then added two
levels for obstruction of justice (finding that Gagnon
perjured himself at the sentencing hearing), see 3C1.1,
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subtracted three levels for acceptance of responsibility, and
arrived at a TOL of seventeen. There was no dispute that
Gagnon's CHC was I. The court thereafter sentenced Gagnon
near the lower end of the guideline range applicable to a
defendant with a TOL of seventeen and a CHC of I: twenty-
five months' imprisonment.
II.
II.
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On appeal, Shrader assigns error to the district
court's determinations that his CHC significantly
underrepresented both his criminal history and his recidivist
proclivities. Shrader also challenges the court's two-level
manager/supervisor enhancement under 3B1.1(c). Gagnon
assigns error to the court's attribution to him of the
thirty-five pounds of marijuana involved in the Texas
transaction, and to its two-level enhancement for obstruction
of justice. He also contends that he was deprived of his
Sixth Amendment confrontation rights at his sentencing
hearing. We discuss each appeal in turn.
A. Shrader's Appeal
A. Shrader's Appeal
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Shrader's challenge to his CHC enhancement is two-
pronged. First, Shrader contends that a CHC of III does not
"significantly under-represent[] the seriousness of [his]
criminal history or the likelihood that [he] will commit
further crimes." Second, he asserts that the extent of the
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departure was unreasonable in light of the departure-related
circumstances. Neither argument persuades us.
We have observed:
[A]ppellate review of a decision to
depart may involve three subsidiary
questions: 1) review of the departure-
related circumstances to determine
whether or not they are of a kind or
degree that they may appropriately be
relied upon to justify departure; 2)
review of the evidence to see if it
supports the departure-related findings
of fact; and 3) review of the record
support for the direction and degree of
departure.
United States v. Rivera, 994 F.2d 942, 950 (1st Cir. 1993)
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(citation and internal quotation marks omitted). Shrader's
second argument -- which falls squarely within the third of
these three categories -- is subject to a deferential
standard of review. Id. ("review of departure direction and
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degree will take place with full awareness of, and respect
for, the sentencing court's superior feel for the case")
(citation and internal quotation marks omitted).
Shrader's first argument falls within a subset of
the first of these three categories, a subset described in
Rivera as involving "a judgment about whether the given
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circumstances, as seen from the district court's unique
vantage point, are usual or unusual, ordinary or not
ordinary, and to what extent." Id. at 951 (contrasting this
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subset with the "quintessentially legal" type of category one
question, which requires that we simply interpret the words
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of a guideline). Because a district court may have a better
take on the unique circumstances of the particular case
before it and is likely to have seen more "ordinary"
Guidelines cases (and therefore will more readily recognize
the extraordinary case), we review a district court's
"unusualness" determination "with full awareness of, and
respect for, the trier's superior feel for the case, not with
the understanding that review is plenary." See id. at 951-52
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(citation and internal quotation marks omitted). Thus, the
district court's findings that a CHC of III significantly
understated both Shrader's criminal history and his
predisposition towards recidivist behavior are entitled to
deference.
Shrader devotes great energy to arguing that his
criminal history was accurately captured by CHC III, but
spends little effort addressing the district court's
determination that CHC III significantly under-represented
the likelihood that he would commit further crimes. We note
that this latter "recidivist determination" alone, if within
the district court's discretion, is sufficient to support a
departure. See 4A1.3 ("A departure . . . is warranted when
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the criminal history category significantly under-represents
the seriousness of the defendant's criminal history or the
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likelihood that the defendant will commit further crimes.")
(emphasis supplied). In this case, however, we think that
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the record evidence of Shrader's tendency to repeat the
extremely dangerous offense of DWI is sufficient to uphold
both of the court's findings.
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We acknowledge that any criminal defendant with a
CHC of III -- which covers defendants with four to six
criminal history points -- is likely to have been convicted
more than once and therefore likely to have exhibited some
recidivist tendencies. See 4A1.1 (assigning (a) three CHC
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points for each prior sentence exceeding one year and one
month; (b) two points for sentences of more than sixty days
not counted under section (a); (c) one point (up to a total
of four) for sentences not counted under (a) or (b); and (d)-
(f) additional points for specific offense characteristics
not relevant here). And we further acknowledge that, by
capping at four the number of less-than-sixty-days sentences
that can be counted, 4A1.1(c) contemplates the disregarding
of some misdemeanor criminal behavior. Even so, Shrader's
record of persistently disregarding the law strikes us as
unusual.
Because Shrader somehow never received a prison
sentence of more than sixty days for any of his five DWI
convictions, only three of these convictions (along with a
fourth, non-DWI misdemeanor conviction) were counted for CHC
purposes. Thus, as we have noted, Shrader's CHC did not take
account of two DWI convictions. Nor did it take into account
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his careless-driving conviction. Finally, it did not take
account of the DWI arrest on which the federal district court
had held a probable cause hearing in revoking Shrader's bail.
See supra at 7.
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In all, Shrader's CHC took account of only three of
seven incidents during which Shrader threatened the lives of
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himself and others by operating a motor vehicle while
compromised by alcohol. And it did not account for the fact
that Shrader had thrice been ordered to undergo
rehabilitation programs designed to deter the very behavior
underlying these incidents. In view of all this, we cannot
say that the district court abused its discretion in
determining that Shrader was more likely to commit further
crimes than the typical defendant with a CHC of III. And in
light of the life-threatening nature of the illegal conduct
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in which Shrader has repeatedly engaged, we cannot say that
the court abused its discretion in finding that Shrader's
criminal history is more serious than that of the typical
defendant with a CHC of III.
Shrader also argues that the degree of departure --
ten months beyond the upper end of the applicable guideline
range -- constituted an abuse of discretion. In so
asserting, Shrader points out that even if his two other DWI
convictions had been counted, he still would have had a CHC
of III. He contends that, in essence, he was given a ten-
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month sentence for his most recent DWI arrest which, he
asserts, should not have been considered at all. See 4A1.3
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("a prior arrest record itself should not be considered under
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4A1.3") (emphasis supplied). His argument completely
overlooks the careless driving conviction and the court's
probable cause determination on the most recent DWI arrest.
More importantly, it disregards the recidivist implications
of his constantly repeating the same dangerous criminal
behavior despite previous sentences containing rehabilitative
components aimed directly at the behavior. When evaluated in
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this context, Shrader's argument falls far short.
The record reflects that the court faithfully
followed the recommendation of 4A1.3 by determining that
Shrader's criminal history and recidivist tendencies most
closely resembled that of a defendant with a CHC of IV, and
then sentencing Shrader within the guideline range specified
for a defendant with a CHC of IV. The court's process and
reasoning were impeccable, and resulted in a sentence that is
facially reasonable. There was no abuse of discretion in the
district court's degree of departure.
Shrader's challenge to the court's two-level
manager/supervisor enhancement pursuant to 3B1.1(c)
requires less discussion. We review the court's
determination only for clear error, see United States v.
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Morillo, 8 F.3d 864, 871 (1st Cir. 1993), and perceive none
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here.
Shrader argues that the record, read in the light
most favorable to the government, establishes no more than
that he was a "steerer," a "go-between," or a "functionary"
in the Texas and Colorado transactions. See United States v.
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Sostre, 967 F.2d 728, 733 (1st Cir. 1992) (one who merely
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"steers" drug buyers to sellers ordinarily cannot be
considered a manager/supervisor under 3B1.1). Shrader
misreads the record in making this argument.
As the district court observed in its detailed
findings of fact, Shrader did far more than bring people
together; he was, in fact, the principal through whom the
Bandidos conducted the Colorado and Texas sales. At the
meeting and sale in Aurora, Colorado, Shrader committed his
organization -- an organization with several other
participants -- to the deal subsequently consummated in
Texas. When Zahler balked at the quality of the marijuana
first presented in Texas, Shrader stated that he could, and
later did, procure higher-grade material. And Shrader
oversaw the execution of the Texas deal; while another
Bandido carried the marijuana into Zahler's hotel room,
Shrader accepted and counted the money, and paid himself on
the spot. In sum, Shrader managed the Colorado and Texas
transactions, and supervised at least one other individual in
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the course of so doing. No more is required. See 3B1.1,
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comment. (n.2) ("To qualify for an adjustment under this
section, the defendant must have been the organizer, leader,
manager, or supervisor of one or more other participants.")
The district court's role-in-the-offense enhancement was not
clearly erroneous.
B. Gagnon's Appeal
B. Gagnon's Appeal
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Gagnon concedes that his challenges to the district
court's attribution to him of the marijuana from the Texas
transaction and imposition of the obstruction of justice
enhancement (for denying involvement in the Texas transaction
at the sentencing hearing) rise or fall on the sustainability
of the court's factual finding that Gagnon was involved in
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the Texas transaction. Because the court's finding is easily
sustainable, Gagnon's arguments necessarily fail.
We will affirm a district court's obstruction-of-
justice enhancement unless it is clearly erroneous. United
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States v. Ovalle-Marquez, 36 F.3d 212, 225 (1st Cir. 1994),
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cert. denied, 115 S. Ct. 947 (1995). And in the absence of
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clear error, so too will we affirm a district court's drug
attribution, relevant-conduct determination, United States v.
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Innamorati, 996 F.2d 456, 489 (1st Cir.), cert. denied, 114
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S. Ct. 409 (1993), and credibility assessment, United States
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v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir. 1993). Thus, our
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inquiry reduces to whether the district court clearly erred
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in disbelieving Gagnon's testimony and finding that Gagnon
was involved in the Texas transaction. We discern no clear
error in the court's finding.
As we already have explained, the court premised
its finding on the affidavits submitted by Zahler and
Audette, the testimony from New Hampshire State Trooper
Robert Quinn, and the documentary evidence of the phone calls
between Gagnon's Aurora residence and the hotels in Texas at
which Zahler and Audette stayed during the days preceding the
Texas drug deal. Gagnon does not dispute that, if the Zahler
and Audette affidavits are credited, this is a more than
adequate basis to support the court's finding. He argues,
however, that the court erred in crediting these "unreliable"
affidavits over his own sworn testimony. He further contends
that the other evidence is insufficiently corroborative or
probative to ground the challenged finding. Because we
disagree with Gagnon's argument regarding the Zahler and
Audette affidavits, we need not consider the independent
effect of Quinn's testimony and the telephone records.
It is settled that a "sentencing judge is vested
with wide discretion to determine the information on which
sentencing guideline decisions will be based, and may
consider reliable hearsay evidence." United States v.
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Montoya, 967 F.2d 1, 3 (1st Cir.) (citation omitted), cert.
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denied, 113 S. Ct. 507 (1992); see also 6A1.3 (evidence
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with "sufficient indicia of reliability to support its
probable accuracy" may be considered at sentencing "without
regard to its admissibility under the rules of evidence
applicable at trial"). The judge also has "wide discretion"
in determining whether sentencing information is reliable.
Montoya, 967 F.2d at 3 n.6. Mindful of these tenets, we
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believe that the district court acted within its discretion
in crediting the Zahler and Audette affidavits.
The thrust of Gagnon's argument is that Zahler and
Audette, as cooperating co-conspirators, had such strong
incentives to inculpate Gagnon that the largely
uncorroborated statements contained in their self-serving
affidavits should be rejected out of hand. While we
certainly concede that uncorroborated, or largely
uncorroborated, affidavits of cooperating co-conspirators
should be viewed with some skepticism, we see no basis for
adopting what would amount to a per se rule of unreliability.
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We think the wiser course is to leave reliability decisions
and credibility determinations to the informed discretion of
the district court, while rigorously ensuring that defendants
have a sufficient opportunity to impeach tenuous evidence in
appropriate ways, such as through cross-examination or by the
introduction of evidence of their own.
Here, the district court provided Gagnon with a
fair process. The record shows that Gagnon had a full
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opportunity to tell the court his side of the story.
Moreover, during his cross-examination of Quinn, Gagnon
elicited the self-serving nature of Zahler's and Audette's
cooperation with the government. Gagnon also was able to
emphasize the almost complete absence of hard evidence
corroborating the statements made in the affidavits.
Gagnon makes a post hoc argument that he was
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entitled to cross-examine Zahler and Audette; indeed, he
frames the argument as a constitutional challenge to his
sentencing, arguing that it violated the Sixth Amendment's
Confrontation Clause. Whatever merit there might be in the
contention that the Confrontation Clause applies in
situations such as this (and we take no position on the
contention here, but see United States v. Tardiff, 969 F.2d
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1283, 1287 (1st Cir. 1992) ("in the usual case, a defendant's
Sixth Amendment right to confront the witnesses against him
does not attach during the sentencing phase")), Gagnon cannot
assert it in this appeal because he did not attempt to call
Zahler and Audette as witnesses at his sentencing, cf. United
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States v. Garcia, 34 F.3d 6, 10 n.1 (1st Cir. 1994)
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(sentencing challenges not first presented to the sentencing
court are ordinarily waived on appeal). Application of the
waiver rule is especially appropriate in this instance, where
the district court indicated on the record that it would have
allowed Gagnon to cross-examine Zahler and Audette had he so
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requested, see United States v. Gagnon, Cr. No. 93-61-02-JD,
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order at 2 (D.N.H. Sept. 13, 1994), and where the court's
failure to order Zahler and Audette to appear cannot be
considered plain error under Fed. R. Crim. P. 52(b).
In the end, we see no clear error in the district
court's determination that Gagnon was involved in the Texas
transaction. We accordingly reject Gagnon's challenges to
the court's relevant conduct determination and to its two-
level enhancement for obstruction of justice.
III.
III.
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For the reasons stated, we affirm the sentences of
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defendants Mark Shrader and Ricky Gagnon.
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