USCA1 Opinion
June 13, 1996 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1486
UNITED STATES OF AMERICA,
Appellee,
v.
JENNIEROSE LYNCH,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Jeffrey M. Smith and Peters, Smith & Moscardelli, by
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appointment of the court, on brief for appellant.
Donald K. Stern, United States Attorney, and Frank A. Libby,
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Jr., Assistant United States Attorney, on brief for the United
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States.
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Per Curiam. In this sentencing appeal, defendant-
Per Curiam.
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appellant Jennierose Lynch, represented by able counsel, assigns
error in regard to two district court determinations that
materially affected the length of her sentence. Discerning no
hint of error, we summarily affirm.
1. The appellant's first complaint relates to the
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district court's drug quantity determination. The court
determined that the appellant personally participated in
transactions involving between two and one-half and four
kilograms of cocaine; that the conspiracy of which she was a
member, during the period of her membership, launched
transactions involving another five to fifteen kilograms at a
minimum; that many (if not all) of these transactions occurred in
the course of jointly undertaken criminal activity (the charged
conspiracy) and were foreseeable to her; and that, therefore, she
was responsible (in the relevant conduct sense, see U.S.S.G.
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1B1.3) for over five kilograms of cocaine in toto, bringing to
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bear a mandatory minimum ten-year sentence. See 21 U.S.C.
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841(b)(1)(A)(ii) (providing for mandatory minimum sentence of ten
years in cases involving five kilograms or more of cocaine).
We review the district court's findings of fact anent
drug quantity only for clear error, and we will set such findings
aside only if we are persuaded that the sentencing court has made
a "serious mistake." United States v. Morillo, 8 F.3d 864, 870
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(1st Cir. 1993). We are not so persuaded here; to the contrary,
we believe that the sentencing court's findings are both
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sufficiently explicit and sufficiently record-rooted.
Drug quantities need not be determined in a
mathematically precise fashion. Within the margins of
reliability, sentencing courts have the authority to make
reasonable estimates based on available information. See, e.g.,
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United States v. Sepulveda, 15 F.3d 1161, 1199 (1st Cir. 1993),
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cert. denied, 114 S. Ct. 2714 (1994); United States v. Sklar, 920
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F.2d 107, 113 (1st Cir. 1990). It is, moreover, settled that
members of a drug-trafficking conspiracy may be held accountable
at sentencing for different drug quantities depending on the
circumstances of their involvement. See United States v. Munoz,
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36 F.3d 1229, 1237 (1st Cir. 1994 ), cert. denied, 115 S. Ct.
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1164 (1995); United States v. Garcia, 954 F.2d 12, 16 (1st Cir.
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1992). In respect to a defendant's accountability for drug
transactions in which she did not personally participate,
foreseeability is the key. See Garcia, 954 F.2d at 16. "In the
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usual case, what is foreseeable depends on the scope of the
defendant's agreement with the other participants in the criminal
enterprise." Munoz, 36 F.3d at 1237.
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Here, the record reveals that the district court fully
understood these principles, applied the correct legal standard,
and made a fact-sensitive determination of what trafficked drugs
were, in the court's words, "reasonably foreseeable or actually
known to [Lynch] . . . during the time she was a knowing and
willing participant in th[e] conspiracy." These findings cannot
be set aside under the jurisprudence of clear error. After all,
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the district court heard over ten weeks of trial testimony, and
also had the benefit of a compendious presentence investigation
report (PSI Report) a report that was not contradicted by
countervailing evidence in any relevant particulars. The
testimony and the specifics in the PSI Report, viewed favorably
to the government, fully substantiate the findings. No more is
exigible. See, e.g., United States v. Gonzalez-Vazquez, 34 F.3d
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19, 25 (1st Cir. 1994) (discussing utility at sentencing of facts
contained in PSI Report); United States v. Ruiz, 905 F.2d 499,
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508 (1st Cir. 1990) (discussing utility of trial testimony in the
sentencing phase); see also United States v. Jimenez-Otero, 898
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F.2d 813, 815 (1st Cir. 1990) (explaining that, when there are
two or more plausible views of the evidence, the sentencing
court's choice among them cannot be clearly erroneous).1
2. The appellant's second issue involves the so-called
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"safety valve" provision, 18 U.S.C. 3553(f), which in certain
cases constrains the application of mandatory minimum sentences.
Pursuant to this provision, the sentencing court is directed to
impose a sentence in accordance with the guidelines (without
regard to any statutory minimum) if a convicted defendant
satisfies five set criteria. See id.; see also U.S.S.G. 5C1.2
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(Nov. 1995) (implementing the statute). The court below held
that Lynch failed to meet the fifth of these criteria in that she
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1Lynch's contention that the district court failed to make
specific subsidiary findings of fact related to the drug quantity
issues is unavailing. The sentencing court's findings need not
be precise to the point of pedantry. Here they are sufficiently
explicit and comprehensive to withstand criticism.
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did not provide complete and truthful information "to the
Government" in the appropriate time frame. 18 U.S.C.
3553(f)(5). Lynch argues that she satisfied this requirement by
providing the information to the probation officer in the course
of the compilation of the PSI Report. The district court
disagreed with Lynch's argument. So do we.
We need not tarry. While this case was pending on
appeal, a panel of this court decided the precise point, contrary
to the appellant's position, in United States v. Jimenez
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Martinez, No. 95-1511, slip op. at 19 (1st Cir. Apr. 24, 1996)
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(concluding that "government" as used in 18 U.S.C. 3553(f)(5)
and U.S.S.G. 5C1.2(5) refers exclusively to the prosecutorial
authority, and not to the probation department); see also United
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States v. Montanez, No. 95-2096, slip op. at 6-7 (1st Cir. Apr.
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24, 1996). Jimenez Martinez is binding here, and blocks the
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appellant's desired access to the safety valve.
We need go no further.2 Because the appellant's
points are unpersuasive, we summarily affirm her conviction and
sentence.
Affirmed. See 1st Cir. R. 27.1.
Affirmed. See 1st Cir. R. 27.1.
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2Given the view that we take of the merits, we need not
reach and express no opinion upon the government's contention
that the appellant, in executing the plea agreement, waived her
right to prosecute this appeal.
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