U.S. v. Olivier-Diaz

• Decision Date: 10 September 1993
• Docket Number: No. 93-1306,OLIVIER-DIAZ,93-1306
• Citation: 13 F.3d 1
• Parties: UNITED STATES, Appellee, v. Pedro Arismendya/k/a Arty, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

13 F.3d 1

UNITED STATES, Appellee, v. Pedro Arismendy OLIVIER-DIAZ a/k/a Arty, Appellant.

No. 93-1306.

United States Court of Appeals First Circuit.

Heard Sept. 10, 1993.

Decided Dec. 22, 1993.

George L. Garfinkle with whom Jeffrey A. Denner and Perkins, Smith & Cohen, Boston, MA, were on brief, for appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Jay P. McCloskey, U.S. Atty., and Jonathan Toof, Asst. U.S. Atty., Portland, ME, were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BARBADORO, ^* District Judge.

BARBADORO, District Judge.

Defendant Pedro Arismendy Olivier-Diaz appeals from the sentence he received after he was found guilty of conspiracy to possess cocaine with intent to distribute and aiding and abetting the distribution of cocaine. See 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), 846, and 18 U.S.C. Sec. 2. Arismendy challenges his sentence on two grounds. First, he contends that the district court erred in calculating his offense level under the federal sentencing guidelines when it (1) relied on the testimony of an allegedly untrustworthy witness to determine the amount of cocaine involved in the conspiracy and (2) concluded on the basis of inadequate evidence that he acted as an organizer or leader of a criminal activity involving five or more participants. Second, he claims for the first time on appeal that the court engaged in "double counting" when it increased his criminal history category by using prior convictions that allegedly resulted from the conspiracy on which his federal sentence was based. Finding no reversible error, we affirm Arismendy's sentence in all respects.

I. BACKGROUND

A. The Offenses

During the fall of 1990, Arismendy met Ramon Verona, a small-time drug dealer, and offered to sell him cocaine. Verona initially declined. However, he later contacted Arismendy on two occasions and purchased 125 grams of cocaine on credit. Two or three months later, Arismendy persuaded Verona Verona used the cocaine he obtained from Arismendy to supply three of his customers in Maine, Peter Lauzier, Vicki Hall and Pauline Rivard. Because Verona ran the cocaine operation on credit, however, debt collection quickly became a significant problem. By May 1991, Rivard owed Verona approximately $16,000 for "fronted" cocaine, $4,000 of which was owed to Arismendy. Arismendy's solution to this problem was to recruit Verona's paramour, Argentina Dalmassi, and three men, to travel with him to Maine to collect the debt. On June 2, 1991, the group arrived at Rivard's home and confronted her boyfriend, Robert Pelletier. When Pelletier informed them that Rivard was not at home, Arismendy and the three men ransacked the house, taking some cash and some jewelry. As they were leaving, Arismendy proposed that he take possession of Pelletier's boat and provide Pelletier with cocaine to sell until he paid back what Rivard owed.

                and an unidentified woman to make several trips from New York to Massachusetts to transport cocaine.  Once in Massachusetts, Verona and the courier delivered the cocaine to a confederate of Arismendy's whom Verona knew only as "Giovanni."   For each trip, Verona was paid $500 and supplied with 125 grams of cocaine on credit
                

Later that day, Arismendy encountered Rivard at a nearby flower shop and demanded payment. Although she believed that she only owed money to Verona, Rivard promised to pay Arismendy the next day. Moments later, Dalmassi appeared, slapped Rivard in the face and demanded immediate payment. Arismendy, however, ordered Dalmassi to leave. The group was arrested on charges related to this collection attempt but they were all released on bail later that day. Fearing for her safety when she learned of their release, Rivard went to the authorities and offered to cooperate.

In July 1991, Arismendy, unbeknownst to Verona, began distributing cocaine directly to Lauzier and Hall. For the next several months, Arismendy supplied them with two to ten ounces of cocaine every other week. In early October, a customer contacted Lauzier and Hall and asked to purchase cocaine. In response, Lauzier and Hall went to a trailer owned by their friend, Elwin Baker, weighed the cocaine in Arismendy's presence, and drove to a local bar to make the sale. They were immediately arrested, however, because their customer sold the cocaine to an undercover officer of the Maine Bureau of Intergovernmental Drug Enforcement (MBIDE). Arismendy, who was waiting to be paid for the cocaine, became concerned after Lauzier and Hall failed to return, and he sent Baker out to search for them. When Arismendy learned that they had been arrested, he had Baker drive him back to his home in New York. Arismendy later placed Baker in charge of Lauzier and Hall's business and sold him as much as eight ounces of cocaine at a time.

Arismendy was arrested by the MBIDE in January 1992 and was subsequently convicted of the present federal charges in the United States District Court for the District of Maine.

B. The Sentence

The court held a sentencing hearing on February 26, 1993. Verona was called as a witness at the hearing and cross examined by the defense in an effort to attack his trial testimony. During this examination, Verona testified that he had made at least four trips from New York to Massachusetts, transporting seven kilograms of cocaine on the first trip, and added, "I don't remember well, but I think the other [trips] were about 10 kilograms each." This testimony differed slightly from his trial testimony where he had claimed that he had made "five or six trips" and had delivered seven kilograms of cocaine on the first two trips and ten kilograms on each remaining trip.

In determining Arismendy's total offense level, the district court first grouped the two counts on which Arismendy had been convicted, see U.S.S.G. Sec. 3D1.2(d), and set his base offense level at 34 because it found that Arismendy's conduct involved approximately 36 kilograms of cocaine. See U.S.S.G. Sec. 2D1.1(c)(5) (Drug Quantity Table) (establishing base offense level 34 for conduct involving "[a]t least 15 KG but less than 50 KG of Cocaine"). The court then found that Arismendy had been an organizer or leader The court then placed Arismendy in criminal history category II by assigning one criminal history point to prior State of Maine convictions for theft and criminal threatening and a second point to a prior State of New York conviction for operating a motor vehicle while impaired by alcohol. See U.S.S.G. Sec. 4A1.1(c). Accordingly, the court determined Arismendy's guideline sentencing range to be 324-405 months. The court then sentenced Arismendy to 365 months in prison, five years of supervised release and a $5,000 fine. This appeal followed.

of a criminal activity involving five or more participants and added four levels to his base offense level. See U.S.S.G. Sec. 3B1.1(a). Finally, because Arismendy had received two firearms as partial payment for cocaine, the court made an additional two-level increase to his offense level. See U.S.S.G. Sec. 2D1.1(b)(1). These calculations resulted in a total offense level of 40.

II. DISCUSSION

A. The Offense Level

Arismendy challenges two steps in the district court's offense level computation. We consider his claims "mindful that we must both 'accept the findings of fact of the district court unless they are clearly erroneous' and 'give due deference to the district court's application of the guidelines to the facts.' " United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.1990) (quoting 18 U.S.C. Sec. 3742(e)).

1. Cocaine Quantity

Arismendy's first argument is that the sentencing court erroneously relied on Verona's testimony in determining the amount of cocaine involved in the conspiracy because Verona offered uncorroborated and self-contradictory testimony in an effort to receive favorable treatment from the government. We reject this contention.

Arismendy's counsel forthrightly conceded at oral argument that if Verona's testimony were believed, his claim would collapse. Given this concession, we easily conclude that the district court did not err in its drug quantity determination. The record shows unequivocally that after considering the evidence and rejecting the same arguments now raised on appeal, the court found Verona's testimony to be credible. In the absence of clear error, such assessments are exclusively within the province of the sentencing court. We find no such error here. Cf. id. at 508 ("where there is more than one plausible view of the circumstances, the sentencing court's choice among supportable alternatives cannot be clearly erroneous").

2. Leadership Role

Arismendy next claims that the district court committed clear error when it increased his offense level by four levels because of his alleged leadership role in the conspiracy. See U.S.S.G. Sec. 3B1.1(a). He contends that the enhancement was improper because the evidence established only that he acted alone in selling cocaine to multiple "independent customers." We disagree.

Two conditions must be met before a leadership role enhancement is in order under U.S.S.G. Sec. 3B1.1(a). See United States v. Preakos, 907 F.2d 7, 9 (1st Cir.1990) (per curiam). First, the sentencing court must find that the defendant acted as "an organizer or leader of a criminal activity." Second, the activity must have "involved five or more participants or was otherwise extensive." See United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.1990) (quoting U.S.S.G. Sec. 3B1.1(a)).

In determining whether a defendant had a leadership role in criminal activity, the commentary to section 3B1.1 instructs courts to consider such factors as decision making authority, recruitment of accomplices, degree of participation in planning the offense, degree of control over others, and a claimed right to a larger share of the fruits of the crime. U.S.S.G. Sec. 3B1.1, comment. (n. 4); ...