U.S. v. Adipietro

• Decision Date: 12 March 1993
• Docket Number: 92-1791 and 92-2667,Nos. 92-1776,s. 92-1776
• Citation: 983 F.2d 1468
• Parties: UNITED STATES of America, Appellee, v. Frank ADIPIETRO, Appellant. UNITED STATES of America, Appellee, v. Vincent AURICCHIO, Appellant. UNITED STATES of America, Appellee, v. Ruben O. SANCHEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1468

983 F.2d 1468

UNITED STATES of America, Appellee, v. Frank ADIPIETRO, Appellant.

UNITED STATES of America, Appellee, v. Vincent AURICCHIO, Appellant.

UNITED STATES of America, Appellee, v. Ruben O. SANCHEZ, Appellant.

Nos. 92-1776, 92-1791 and 92-2667.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 16, 1992.

Decided Jan. 22, 1993.

Rehearing Denied March 12, 1993.

Linda S. Sheffield, Atlanta, GA, argued, for Adipietro.

Steven Mahler, Kew Gardens, NY, argued, for Auricchio.

Cenobio Lozano, Harrisonville, MO, argued, for Sanchez.

Barry Levine, Mineola, NY, Charles E. Atwell, Susan M. Hunt, Kansas City, MO, and Perry S. Reich, Lindehurst, NY, on the brief.

Charles E. Ambrose, Kansas City, MO, argued, for appellee.

Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges and BATTEY ^* District Judge.

BATTEY, District Judge.

Frank Adipietro, Vincent Auricchio, and Ruben O. Sanchez and others were charged under a superseding indictment with conspiracy to distribute and to possess with intent to distribute a controlled substance (marijuana), a violation of 21 U.S.C. § 846.

Appellant Frank Adipietro (Adipietro) argues that his conviction should be remanded for resentencing because: (1) the district court ¹ erred in calculating his base offense level by including marijuana which was the subject of future shipments; (2) the district court erred in failing to give him a reduction based on an uncompleted conspiracy; (3) a three-level enhancement which the district court applied for his role as a leader or manager of the conspiracy was not only substantively in error, but also in violation of his due process notice rights; and (4) the district court erred in not reducing his sentence based on his acceptance of responsibility. Adipietro was sentenced to imprisonment for 190 months (15 years, 10 months) followed by five years supervised release.

Appellant Vincent Auricchio (Auricchio) argues that his conviction should be reversed and remanded for retrial or for resentencing because: (1) the evidence at trial demonstrated multiple conspiracies instead Appellant Ruben O. Sanchez (Sanchez) argues that his conviction should be reversed and remanded for retrial or for resentencing because: (1) the district court erred in not granting a mistrial after a prosecution witness referred to a subject which the court had already ruled would be inadmissible; (2) the district court erred in giving him a four-level enhancement for his role as a leader or organizer of the conspiracy; and (3) the district court erred in enhancing his sentence for obstruction of justice. Sanchez received a term of imprisonment of 340 months (28 years, 4 months) followed by 15 years of supervised release.

                of a single conspiracy as charged and the district court erred in refusing to give a multiple-conspiracy jury instruction;  and (2) the district court erred in sentencing him based on 974 pounds of marijuana when only 496 pounds of marijuana had actually been delivered.   Auricchio received a term of imprisonment of 88 months (7 years, 4 months) followed by 5 years of supervised release
                

We affirm both the convictions and sentences of all appellants.

FACTS

In 1988, Alan Kaniss (Kaniss) and Sanchez began transporting marijuana from Tucson, Arizona, to Mitchell Dozor (Dozor) in Philadelphia, Pennsylvania. In general, Kaniss assumed responsibility for transporting the marijuana and finding buyers while Sanchez assumed responsibility for finding suppliers of the marijuana, although Sanchez at times oversaw transportation of the marijuana when Kaniss was out of town.

In late 1990 or early 1991, Kaniss procured Adipietro's name as a potential buyer in the Long Island, New York, area. Adipietro and Kaniss met in Las Vegas in January, 1991, and Adipietro expressed to Kaniss that he wished to purchase marijuana from Kaniss. Adipietro stated that he could handle up to 24 deliveries a year of 100 to 200 pounds of marijuana each. Kaniss responded that he could provide Adipietro with perhaps 20 such deliveries over the next year. ²

After the Las Vegas meeting, Adipietro contacted Auricchio, a fellow Long Island resident. Adipietro informed Auricchio that he was going to be involved in a number of purchases of bulk quantities of marijuana and that he would like Auricchio's assistance with these deliveries. Thereafter, Kaniss delivered three shipments of marijuana to Adipietro totalling 446 pounds (202.31 kilograms). At each of these deliveries Auricchio was present and helped unload the marijuana. One delivery was stored in Auricchio's family home and Auricchio helped Adipietro repackage the marijuana for further distribution, although Auricchio was not otherwise involved in the redistribution.

On April 16, 1991, Roy Jacoby (Jacoby) and Richard Bronger (Bronger), the two deliverymen who transported marijuana from Arizona to Philadelphia and Long Island for Kaniss, were stopped by a highway patrolman. A search revealed 187 pounds of marijuana.

Jacoby and Bronger agreed to cooperate with law enforcement officials. Under controlled conditions, they made their planned delivery to Dozor in Philadelphia. Dozor was then arrested and he also agreed to assist law enforcement officials. Jacoby and Dozor contacted Kaniss and told him that Dozor would not take 50 pounds of the shipment. Kaniss then instructed Jacoby and Bronger to deliver the 50 pounds to Adipietro in Long Island.

Jacoby and Bronger delivered the 50 pounds of marijuana to Adipietro in Long Island. Auricchio was not present at this delivery. Adipietro inquired how the delivery went in Philadelphia and accepted the 50 pounds. In addition, Adipietro gave Jacoby and Bronger over $103,000 in payment for a previous shipment. Thereafter, Adipietro, Auricchio, Kaniss, and Sanchez were arrested.

Dozor, Jacoby, Bronger, and Kaniss entered pleas of guilty. Adipietro, Auricchio, and Sanchez entered pleas of not guilty and were tried. All three were found guilty.

DISCUSSION

A. ISSUES RAISED BY ADIPIETRO

1. Calculation of Base Offense Level Using the Undelivered Shipments from Las Vegas Discussion

Over the course of the conspiracy, approximately 496 pounds (224.98 kilograms) were actually delivered to Adipietro. ³ The government argued at sentencing that Adipietro should be held accountable for the full amount of marijuana which Adipietro negotiated for in Las Vegas, which would amount to something over 1,000 but less than 3,000 kilograms. Adipietro argues that he should only be held accountable for the 496 pounds actually delivered to Long Island because his conversation with Kaniss in Las Vegas did not constitute a negotiation. Alternatively, Adipietro argues that even if that conversation constituted a negotiation, calculation of his base offense level by including those undelivered, negotiated amounts was nonetheless improper because the district court made no finding as to whether Kaniss had the intent and capability of producing the negotiated amount.

The court found that Adipietro was responsible for over 1,000 kilograms (Base Offense Level 32) based on the reasonable foreseeability to Adipietro that the object of the conspiracy would be the delivery of this amount of marijuana. S.Tr. 95. The court based its finding of reasonable foreseeability on Kaniss's testimony at the sentencing hearing concerning the Las Vegas meeting. S.Tr. 97-99. The court specifically found Kaniss's testimony concerning the substance of the meeting to be credible. S.Tr. 94-95.

A district court's findings as to quantity of drugs attributable to a criminal defendant will not be overturned on appeal unless clearly erroneous. United States v. Alexander, 982 F.2d 262, 267 (8th Cir.1992) (citing United States v. Walton, 908 F.2d 1289, 1301 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990)). A district court's findings as to the credibility of a witness are "virtually unreviewable on appeal." United States v. Candie, 974 F.2d 61, 64 (8th Cir.1992) (citing 18 U.S.C. § 3742(e) and United States v. Pou, 953 F.2d 363, 370 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1982, 118 L.Ed.2d 580-81 (1992)).

Upon a review of the record, we find no error in the district court's findings.

2. Reduction for Uncompleted Conspiracy

Adipietro further argues that if his sentence was properly calculated pursuant to section 2D1.4, then pursuant to U.S.S.G. § 2X1.1(b)(2) he is entitled to a reduction for being a member of an uncompleted conspiracy. Section 2X1.1 states that if a conspiracy is "expressly covered by another offense guideline section, apply that guideline section." U.S.S.G. § 2X1.1(c)(1). Adipietro was convicted of a conspiracy involving a controlled substance. Such offenses are "expressly covered by another offense guideline section," namely section 2D1.4. Therefore, by its own terms, section 2X1.1 does not apply to determine Adipietro's sentence.

3. Enhancement Based on Managerial or Leader Role

The district court adjusted Adipietro's base offense level by three levels pursuant to U.S.S.G. 3B1.1(b). Adipietro argues that this was both substantively wrong and a violation of his right to notice under Burns v. United States, --- U.S. ----, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991).

a. Substance of the Adjustment

Adipietro attacks the substance of the adjustment by arguing that he was neither a manager nor a supervisor and that the conspiracy did not involve five or more persons.

Section 3B1.1(b) requires a sentencing court to make two findings of fact before enhancement is proper: the court must find (1) that the defendant was a manager or supervisor and not an organizer or leader, and (2) the conspiracy consisted of at least five or more participants or was otherwise extensive. U.S.S.G. § 3B1.1(b). Whether a defendant is a manager or supervisor should be determined by considering, among other things, whether the defendant recruited accomplices and the degree of control and...