U.S. v. Platte

• Citation: 577 F.3d 387
• Decision Date: 20 August 2009
• Docket Number: No. 08-1491.,08-1491.
• Parties: UNITED STATES of America, Appellee, v. Jonathan PLATTE, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

577 F.3d 387

UNITED STATES of America, Appellee, v. Jonathan PLATTE, Defendant, Appellant.

No. 08-1491.

United States Court of Appeals, First Circuit.

Submitted July 1, 2009.

Decided August 20, 2009.

Paul J. Garrity, on brief, for appellant.

Michael J. Gunnison, Acting United States Attorney, and Aixa Maldonado-Quiñones, Assistant United States Attorney, on brief, for appellee.

Before SELYA, BOUDIN and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Jonathan Platte challenges the constitutionality of his sentence and the correctness of the sentencing court's underlying drug quantity determination. We conclude that his arguments lack merit and, therefore, affirm the sentence.

I. BACKGROUND

We glean the facts from the trial transcript, the transcript of the disposition hearing, and the undisputed portions of the presentence investigation report (PSI Report).

Early in 2004, police officers entered the appellant's home in Wilton, New Hampshire. They were responding to a 911 call placed by the appellant's erstwhile girlfriend, Cassandra Moynihan. In a room above the garage, the officers saw drug paraphernalia in plain view.

That observation fueled the issuance of an initial search warrant and, a year later, a second search warrant. The searches unearthed more drug paraphernalia, three pounds of marijuana, roughly two ounces of cocaine, slightly more than one-quarter ounce of heroin, three firearms, and large amounts of cash.

In due course, a federal grand jury returned a six-count indictment charging the appellant with the commission of various drug-trafficking and firearms offenses. On March 23, 2007, a jury found the appellant guilty on five of the six counts. For present purposes, we need concern ourselves with only one such count: conspiracy to possess with intent to distribute in excess of 500 grams of cocaine, 50 grams of crack cocaine, and 100 grams of heroin.¹ See 21 U.S.C. §§ 841(a)(1), 846.

Following the jury's verdict, the district court set out to determine the guideline sentencing range (GSR) called for by the advisory sentencing guidelines. It first calculated the drug quantities attributable to the appellant. In making this calculation, the court considered, inter alia, the PSI Report and trial testimony given by three coconspirators. We briefly summarize that testimony.

Moynihan, who lived with the appellant, said that their relationship lasted from June 2003 through January 2004. She testified that, during this interval, the appellant traveled to Massachusetts at least once a week to buy drugs from "Carlos." She would count the purchase money before each trip, and recalled that the appellant acquired between $10,000 and $35,000 worth of drugs on each occasion. She added that before each trip the appellant would place an order for the drugs over the telephone, asking for, say, "eight, six, four"—that is, eight ounces of cocaine, six ounces of crack, and forty grams (four "fingers") of heroin. She admitted that the quantities varied from time to time, sometimes ranging higher and sometimes lower. On a different occasion, Moynihan stated that a "few" ounces was the minimum amount of powdered or crack cocaine purchased by the appellant on each trip.

Murdoch Hatfield, who worked in the appellant's drug-trafficking enterprise and who had lived with him for approximately two months, testified that the appellant was the largest distributor of powdered cocaine, crack cocaine, and heroin in an area that encompassed four New Hampshire communities. He confirmed that the appellant bought drugs from Carlos once a week and estimated that the appellant spent between $5,000 and $10,000 each time (which Hatfield translated to at least twenty or thirty grams of heroin, three ounces of powdered cocaine, and two ounces of crack cocaine).

Robert Hudson assisted the appellant in acquiring and peddling drugs from mid-2003 until the appellant's arrest in April of 2005 (including a period when the appellant ran his business from a jail cell). Hudson sometimes accompanied the appellant on the drug-purchasing trips and witnessed the appellant buying, on average, about four ounces of cocaine and one or two "fingers" of heroin each time. Hudson noted that the appellant eventually stopped selling crack cocaine but continued to sell powdered cocaine and heroin until his arrest.

For sentencing purposes in cases involving the distribution of a variety of different drugs, drug quantities are converted into their marijuana equivalents. USSG § 2D1.1, cmt. (n.10(B)). The PSI Report recommended that the appellant be held responsible, over the course of the conspiracy, for one kilogram of heroin (equivalent to 1,000 kilograms of marijuana), 17.69 kilograms of crack cocaine (equivalent to 118,523 kilograms of marijuana), and five kilograms of powdered cocaine (equivalent to 1,000 kilograms of marijuana). Although the probation department recommended these totals, the PSI Report noted that the listed figures had been suggested by the government. It cautioned, however, that these totals were less than the actual drug quantities supported by the evidence.

The equivalency total adumbrated in the PSI Report—120,523 kilograms of marijuana—yielded a base offense level (BOL) of 38. See id. § 2D1.1(c)(1) (drug quantity table). The probation department recommended a four-level increase because the appellant was the organizer and leader of a criminal enterprise involving five or more participants. Id. § 3B1.1(a). Given the appellant's adjusted offense level (42) and his criminal history category (V), his GSR, without regard to the weapons charge,² was 360 months to life imprisonment. Id. Ch.5, Pt.A (sentencing table).

At sentencing, drug quantity was front and center. The appellant advanced two objections relating to that subject (described infra). The sentencing court substantially overruled both objections. The court, however, did reduce the overall drug quantity below what the government and the PSI Report had recommended. In doing so, the court stressed its desire to take a "conservative" approach.

To be specific, the court focused exclusively on the quantities of crack cocaine attributable to the appellant. It largely credited Moynihan's testimony and found the appellant responsible for a total of 5.9 kilograms of crack cocaine.

In arriving at this figure, the court assumed that the appellant purchased six ounces (170.1 grams) of crack cocaine per week. The court then multiplied the six-ounce amount by 104 weeks (the approximate duration of the conspiracy), and divided the product (17.69 kilograms) by three in order to ensure a conservative estimate of the appellant's culpability.³

Because 4.5 kilograms are sufficient to trigger the highest available BOL (38), the court started with that BOL. It followed the other recommendations contained in the PSI Report anent the managerial role adjustment and the appellant's criminal history category, set the GSR accordingly, and imposed a variant below-range sentence of 240 months in prison. The court also imposed a mandatory five-year consecutive sentence for the firearms count. See 18 U.S.C. § 924(c); see also note 2, supra. This timely appeal followed.

II. DISCUSSION

We confront here two claims of sentencing error, each seasonably raised in the lower court. The claims are, therefore, duly preserved for appeal. See United States v. Martínez-Vargas, 321 F.3d 245, 249 (1st Cir.2003). The first—a constitutional claim—raises a purely legal issue, so our review is de novo. United States v. Pierre, 484 F.3d 75, 88 (1st Cir. 2007). The second—a claim that contests the correctness of the drug quantity calculation—denigrates the sentencing court's factfinding, so our review is for clear error. United States v. Ventura, 353 F.3d 84, 87 (1st Cir.2003).

A. The Apprendi Claim.

We start with the appellant's constitutional claim. In substance, he argues that the Fifth and Sixth Amendments require that, for sentencing purposes, a jury determine drug quantities beyond a reasonable doubt. In support of this proposition, the appellant relies chiefly on the Supreme Court's landmark decision in Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which holds that, under the Constitution, a criminal defendant may be convicted or sentenced only after a jury has found him guilty beyond a reasonable doubt of every element of the charged offense. Building on this foundation, the appellant posits that, by determining drug quantity under a preponderance-of-the-evidence standard and without a matching jury finding, the district court transgressed the Apprendi principle.

To be sure, the Apprendi Court declared that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348. But the Apprendi principle is limited to facts that increase the penalty for a crime beyond the prescribed statutory maximum that accompanies the jury's verdict. United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Given this limitation, we have held with monotonous regularity that as long as a defendant's sentence comes within the maximum established by the jury's verdict, a sentencing court's preponderance-of-the-evidence factfinding, even though it may pave the way for a stiffer sentence within that maximum, does not violate the Apprendi principle. See, e.g., United States v. Stierhoff, 549 F.3d 19, 29 (1st Cir.2008); United States v. Arango, 508 F.3d 34, 41 (1st Cir.2007).

We have applied this reasoning in cases, like this one, in which drug quantity has an important influence on the GSR and, thus, on the sentence imposed. In particular, we have ruled that a sentencing court may lawfully determine drug quantity by a preponderance of the...