U.S. v. Perdomo

Decision Date06 March 1991
Docket NumberNo. 238,D,238
PartiesUNITED STATES of America, Appellee, v. Carlos M. PERDOMO, Defendant-Appellant. ocket 90-1177.
CourtU.S. Court of Appeals — Second Circuit

John L. Pacht, Burlington, Vt., for defendant-appellant.

John P. Tavana, Asst. U.S. Atty., Burlington, Vt. (George J. Terwilliger, III, U.S. Atty., D. Vt., David V. Kirby, Asst. U.S. Atty., of counsel), for appellee.

Before PRATT, MAHONEY and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Defendant Carlos Perdomo appeals from a final judgment of conviction entered in the United States District Court for the District of Vermont following his plea of guilty before Franklin S. Billings, Jr., Chief Judge, to one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a), (b) and 846. He was sentenced to a 168 month term of imprisonment, followed by three years of supervised release. On appeal Perdomo contends that the court erred in its application of the Sentencing Guidelines when it (1) considered conduct unrelated to the offense of conviction in selecting Perdomo's base offense level; (2) considered conduct outside of the offense of conviction in concluding that Perdomo was a manager or supervisor of a criminal activity involving five or more participants; and (3) concluded that Perdomo obstructed justice warranting an upward adjustment. We reject the first two contentions, but remand for reconsideration of the obstruction adjustment.

BACKGROUND

On July 22, 1988 an unidentified man dropped off a package addressed to "Ricardo Cassvan" at the Miami-Dade International Airport's Continental Airlines counter for "Quik Pak" delivery to Burlington, Vermont. Continental personnel opened Defendant Carlos Perdomo and a co-defendant, Miguel Fleitas, flew from Miami to Burlington that same day, accompanied by a woman who rented a car for them in Burlington and then returned to Miami. Perdomo went to the Continental package counter at the airport and, presenting a Canadian identification card in the name of Ricardo Cassvan, asked for a package. After he was told that the package would not arrive until 8:00 pm, he and Fleitas left. At 8:00 pm Perdomo returned, picked up the package and returned to the rental car driven by Fleitas. Agents from the Vermont Drug Task Force followed the car as it headed towards Burlington. Apparently aware of the surveillance, Perdomo and Fleitas took evasive measures, increasing and decreasing their speed, and turning into and out of two parking lots without stopping.

the package and discovered 2.5 kilograms of white powder, 371 grams of which was pure cocaine. Drug enforcement agents substituted another substance for most of the cocaine and shipped the package to Burlington via the "Quik Pak" service.

Perdomo and Fleitas eventually drove past and then turned into the Ho-Hum Motel in South Burlington, and went to the room they had checked into earlier. A few minutes later they returned to their rental car. While Perdomo opened the trunk, Fleitas took the package received at the airport from the glove compartment and placed it under a nearby car. When both men then got into the rental car and started to drive away, they were stopped and arrested by the Vermont Drug Task Force agents. Inside the rental car was a small quantity of marijuana, and the "Ricardo Cassvan" Canadian identification card, torn in half.

In a September 22, 1988 indictment describing only the events of July 22 outlined above, Perdomo and Fleitas were charged in five narcotics related counts, including one of conspiracy to distribute cocaine. On December 20, 1988 Perdomo pled guilty to the one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a), (b) and 846. During the plea allocution, the district court advised him of the maximum sentence that could be imposed under the statute and, although at that time the district court had found the Guidelines unconstitutional, that the Sentencing Guidelines might be applied to his case. After the Guidelines were held constitutional in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the court ordered a presentence report.

The presentence report revealed that, prior to the events of July 22, 1988, Perdomo had been involved in a larger cocaine conspiracy to transport drugs from Miami to Montreal, Canada for distribution. According to the report, Perdomo had controlled a stash house for cocaine and cocaine proceeds in Miami. Between March 2 and March 14, 1988 federal agents recorded, pursuant to warrant, several phone conversations between Perdomo and a group of Cuban drug dealers in Montreal. In these conversations Perdomo initially agreed to deliver five kilograms of cocaine to the head of the Montreal group, Gumersindo Delgado, but ended up promising to deliver "with 100% certainty" only two kilograms. This deal was never consummated. However, on March 18, 1988 federal agents searched the stash house and found wrappers for twelve kilograms of cocaine, as well as cocaine residue in the drains.

The investigation also revealed that Perdomo had other contacts with the Montreal dealers. In February 1988 one of the dealers met Perdomo in Miami. In April 1988 Perdomo went to Montreal where he spent time in the Club Video Maniac, the business front for the Montreal drug operation. Perdomo then drove to Burlington, Vermont and took a plane back to Miami. On May 9, 1988 the Quebec police issued arrest warrants for members of the Montreal drug ring and Perdomo. On May 10 Delgado and the others in Montreal were arrested. In September 1988, after a trial in Canada, they were found guilty of drug trafficking and given sentences ranging from 2 to 7 1/2 years of imprisonment.

On the basis of this information, the presentence report initially recommended that Perdomo be assigned an adjusted offense

level of 38, which, at a Criminal History Category I, carries a term of imprisonment of 235 to 293 months. This level was derived from a base offense level of 32, the result of adding the 371 grams of cocaine recovered on July 22 to the five kilograms of cocaine that Perdomo discussed selling to Delgado in March. The report then increased the base offense level by four points under Sec. 3B1.1(b) upon a finding that Perdomo was an organizer or leader of criminal activity involving five or more persons, and by two points under Sec. 3C1.1 for obstruction of justice. After Perdomo challenged the foregoing calculation the district court adjusted it by reducing the amount of cocaine negotiated in March from the five kilograms discussed to the two actually promised by Perdomo, thus lowering his base offense level from 32 to 28, and by classifying Perdomo as a manager or supervisor instead of a leader of a criminal activity involving five or more persons, resulting in a three point offense level increase instead of four. The district court declined to alter the obstruction of justice enhancement. The new adjusted offense level was 33, carrying a sentencing range of 135 to 168 months. On February 22, 1990, Judge Billings sentenced Perdomo to 168 months imprisonment. This appeal from his sentence followed.

DISCUSSION
A. Inclusion of the March Cocaine Negotiations as Part of the "Same Course of Conduct" as the Offense of Conviction

Perdomo first argues that the two kilograms of cocaine he agreed to supply to Delgado in March 1988 should not have been included in calculating his base offense level. Perdomo accepts that Guideline Sec. 1B1.3(a)(2) applies in narcotics cases such as this and that it requires the district court to include in the base offense level calculation conduct that is part of the "same course of conduct or common scheme or plan." 1 However, he argues that the March negotiations cannot be characterized as part of the "same course of conduct or common scheme or plan" underlying the July shipment. He argues that the March and July incidents involved different players and that by July he could not have been in contact with the Montreal drug traffickers because they had been arrested in May and were in jail awaiting trial. He also asserts that his roles in the two transactions were different--in the March negotiations he acted as a supplier of a large quantity of cocaine to the head of the Montreal organization whereas in July he was a courier who personally picked up a much smaller quantity. These differences, he maintains, do not permit the district court's inclusion of the two kilograms negotiated in March in determining his base offense level under Sec. 1B1.3(a)(2). We disagree.

Although we have repeatedly held that quantities and types of narcotics uncharged in the offense of conviction can be included in a defendant's base offense calculation if they were part of the "same course of conduct" or part of a "common scheme or plan" as that offense, see United States v. Schaper, 903 F.2d 891 (2d Cir.1990); United States v. Colon, 905 F.2d 580 (2d Cir.1990), see also U.S.S.G. Sec. 1B1.3(a)(2), comment. (backg'd), in United States v. Santiago, 906 F.2d 867 (2d Cir.1990), we drew an implicit distinction between these terms, defining "same course of conduct" apart from "common scheme or plan."

The defendant in Santiago sold heroin to one buyer a dozen times over a seven month period. The buyer was then arrested and spent eight months in jail. When he got out, defendant sold him heroin once again, for which he was arrested and convicted. In holding that the previous dozen sales, completed eight months earlier, constituted the "same course of conduct" as the offense of conviction, we adopted with approval the view of Judge Wilkins, the Chairman of the Sentencing Commission that:

The phrase, however, at least encompasses that portion of [Federal Rule of Criminal Procedure] Rule 8(a) permitting joinder of offenses that "are of the same or similar character" or that involve "two or more...

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