932 F.2d 1029 (2nd Cir. 1991), 1262, United States v. Pimentel

Docket Nº:1262, 1263 and 1026, Dockets 90-1537 to 90-1539.
Citation:932 F.2d 1029
Party Name:UNITED STATES of America, Appellee, v. Rafael PIMENTEL, Amabledeyes DeJesus, Julio DeJesus, Juan DeJesus, Defendants, Amabledeyes DeJesus, Julio DeJesus, Juan DeJesus, Defendants-Appellants.
Case Date:May 02, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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932 F.2d 1029 (2nd Cir. 1991)

UNITED STATES of America, Appellee,

v.

Rafael PIMENTEL, Amabledeyes DeJesus, Julio DeJesus, Juan

DeJesus, Defendants,

Amabledeyes DeJesus, Julio DeJesus, Juan DeJesus,

Defendants-Appellants.

Nos. 1262, 1263 and 1026, Dockets 90-1537 to 90-1539.

United States Court of Appeals, Second Circuit

May 2, 1991

Argued March 28, 1991.

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Alan Drezin, Brooklyn, N.Y., for defendant-appellant Amabledeyes DeJesus.

Mark B. Gombiner, New York City (Henriette D. Hoffman, The Legal Aid Soc., Federal Defender Services Unit, of counsel), for defendant-appellant Julio DeJesus.

Howard L. Jacobs, New York City, for defendant-appellant Juan DeJesus.

Kevin P. McGrath, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., for the E.D. of N.Y., Matthew E. Fishbein, Asst. U.S. Atty., of counsel), for appellee.

Before OAKES, Chief Judge, KEARSE and McLAUGHLIN, Circuit Judges.

OAKES, Chief Judge:

The DeJesus brothers, Julio, Amabledeyes and Juan, appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Thomas C. Platt, Chief Judge. Julio DeJesus pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. Sec. 846. After a jury trial, Amabledeyes and Juan DeJesus were also convicted of a section 846 conspiracy. In addition, both defendants were found guilty of possession with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. Sec. 841, and Juan DeJesus was found guilty of a third count of using and possessing a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. Sec. 924. 1

The sentencing took place on August 30, 1990. Julio DeJesus was sentenced to 72 months' imprisonment, five years' supervised release, and a $50 special assessment. Amabledeyes DeJesus was sentenced to 84 months' imprisonment on each of his two

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convictions, to be served concurrently. He was also sentenced to five years' supervised release and a $100 special assessment. Juan DeJesus was sentenced to 157 months' imprisonment--two concurrent terms of 97 months on the drug counts and a mandatory consecutive term of 60 months on the gun count--as well as five years' supervised release and a $150 special assessment.

I

The principal claims on this appeal relate to the district court's finding regarding the amount of cocaine involved in the offense, upon which the court relied in calculating appellants' base offense levels under the federal Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual (Nov. 1989) (the "Guidelines" or "U.S.S.G."). 2 Where a defendant is convicted of participation in a narcotics conspiracy, "the offense level shall be the same as if the object of the conspiracy ... had been completed." U.S.S.G. Sec. 2D1.4. Accordingly, if the crime involves negotiation to traffic in a controlled substance, "the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount" involved in the conspiracy, unless the defendant "did not intend to produce and was not reasonably capable of producing the negotiated amount." U.S.S.G. Sec. 2D1.4 application note 1; see also United States v. Moon, 926 F.2d 204, 208-09 (2d Cir.1991); United States v. Candito, 892 F.2d 182, 185-86 (2d Cir.1989). Here, the district court found that appellants negotiated to supply undercover New York City Police Detective Bruce Rivera with two kilograms of cocaine, and that they were prepared to supply such an amount. Accordingly, in sentencing the DeJesus brothers, the court applied a base offense level of 28, pursuant to U.S.S.G. Sec. 2D1.1(a)(3) and subsection 8 of the Drug Quantity Table, U.S.S.G. Sec. 2D1.1(c). Amabledeyes and Juan DeJesus now argue that there was insufficient evidence to show that they or their coconspirators negotiated for, or were capable of producing, more than the single kilogram that they actually delivered immediately prior to their arrest. In addition, Julio DeJesus, who pleaded guilty, contends that the court denied him due process by relying on evidence adduced at his brothers' trial in attributing the two kilograms to him. Assuming that these arguments were preserved for appeal, we find them to be without merit.

In challenging the sentencing court's factual finding, appellants face a heavy burden. Disputed facts supporting sentencing calculations under the Guidelines need only be proven by a preponderance of the evidence, see United States v. Macklin, 927 F.2d 1272, 1280 (2d Cir.1991); United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990), and the sentencing court's findings may not be disturbed on appeal unless clearly erroneous, see 18 U.S.C. Sec. 3742(e); United States v. Lanese, 890 F.2d 1284, 1291 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990). Here, the court's finding that appellants negotiated a two-kilogram deal was amply supported by the evidence established at trial and summarized in the Presentence Reports ("PSR"s). Detective Rivera testified that on October 16, 1989, he met with Rafael Pimentel and agreed to purchase two kilograms of cocaine. Pimentel then escorted Detective Rivera to the Reyes Grocery, where, in the presence of brothers Juan and Julio, Amabledeyes DeJesus confirmed in a loud voice that once they received payment, they would send for the cocaine--two kilograms' worth. Detective Rivera eventually called the deal off, but he directed an informant to return to the grocery store to continue negotiations. On October 17, 1989, the informant arranged for the detective to meet the DeJesus brothers to purchase, as before, two kilograms of cocaine. According to Detective Rivera, the informant told him that the DeJesuses had

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agreed to sell one kilogram on October 18, and, if all went well, a second kilogram the day after. Thus, although on the day of the arrest on October 18 only one kilogram was produced, the district court's finding that two kilograms were negotiated was not clearly erroneous.

There was also sufficient evidence from which to infer that the DeJesus brothers were capable of producing the second kilogram. On October 16, after Amabledeyes DeJesus told Detective Rivera that he and his brothers could supply two kilograms, he added that if this sale went smoothly, there was no reason why they could not do a steady business. By October 18, the DeJesus brothers had actually produced a total of 1,213 grams of cocaine. 3 In light of appellants' own statements and actions, we cannot characterize as clearly erroneous the district court's conclusion that appellants were reasonably capable of producing at least two kilograms of cocaine.

As for Julio DeJesus's contention that he was denied due process because the district court failed to notify him that it would rely on facts from his brothers' trial in setting his base offense level, this claim is without foundation. To be sure, the PSR on Julio DeJesus did not specifically state that facts from his brothers' trial would be employed to rebut his claim that his conspiratorial involvement was limited to one kilogram of cocaine. However, the PSR did set forth all the facts established at that trial that Judge Platt later relied on in finding that the offense involved two kilograms. By providing the appellant with a copy of the PSR, the Government provided him with notice of all the relevant information that could be used against him, and at his sentencing hearing, appellant had a meaningful opportunity to challenge the accuracy and sufficiency of this information. Due process...

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