U.S. v. Blanco, No. 89-1450

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore CAMPBELL; BREYER
Citation888 F.2d 907
Docket NumberNo. 89-1450
Decision Date03 October 1989
Parties, 2 Fed.Sent.R. 144 UNITED STATES, Appellee, v. Alfonso BLANCO, Defendant, Appellant.

Page 907

888 F.2d 907
58 USLW 2342, 2 Fed.Sent.R. 144
UNITED STATES, Appellee,
v.
Alfonso BLANCO, Defendant, Appellant.
No. 89-1450.
United States Court of Appeals,
First Circuit.
Oct. 3, 1989.
Decided Nov. 7, 1989.

Page 908

Paul Borges, with whom Joseph A. Bevilacqua, Jr., Providence, R.I., was on brief for appellant.

Kenneth P. Madden, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for appellee.

Before CAMPBELL, Chief Judge, BROWN, * Senior Circuit Judge, and BREYER, Circuit Judge.

BREYER, Circuit Judge.

In late 1988 a federal grand jury returned a six count indictment against the appellant, Alfonso Blanco. The first three counts charged him with possessing (with intent to distribute) about 125 grams of cocaine in July, August, and November 1988. 21 U.S.C. Sec. 841(a)(1) and (b)(1)(C). The remaining counts charged him with attempting (and conspiring) to distribute a larger amount of cocaine at about the same time. 21 U.S.C. Secs. 841(a)(1), (b)(1)(B) and (b)(1)(C); 21 U.S.C. Sec. 846. Blanco pled guilty to the first three counts; the government dropped the last three counts; and, after a sentencing hearing, the district court, using the Sentencing Guidelines, sentenced Blanco to a term of 84 months imprisonment. Blanco now appeals this sentence.

1. Blanco points out that his sentence rests upon a determination that he possessed, or attempted to possess, between 500 grams and 1.9 kilograms of cocaine--an amount of cocaine for which the Guidelines set an offense level of 26 (which, for a person with appellant's criminal history, translates into 70 to 87 months imprisonment). Guidelines Secs. 2D.1.1; 4A1.1; Ch. Pt. 5 A (1988). Blanco notes that he pled guilty to charges involving only about 125 grams of cocaine, and he claims that the government did not prove that he possessed, or attempted to possess, the rest of the cocaine.

The record, however, contains adequate support for the court's finding that Blanco possessed or attempted to possess between 500 grams and 1.9 kilograms of cocaine. The presentence report states that the distributions that Blanco admitted "were intended as samples of larger quantities of cocaine for which the [DEA] agent and Blanco were negotiating." In so stating, the report reiterated the Assistant United States Attorney's statement to the court, when Blanco changed his plea to guilty, that the distribution "was a sample in anticipation of some future transaction." The Assistant U.S. Attorney responded affirmatively to the court's question: "[T]hey were negotiating for a sale of a kilogram ?" (Emphasis added.) After this colloquy, the court asked Blanco, "[D]o you agree that the facts as recited by the prosecutor are true and accurate?" After some initial hesitation, Blanco responded, "All of it, yes."

Blanco, of course, had a right to dispute the truthfulness of any of the statements in the presentence report, Fed.R.Crim.P. 32(c)(3)(A), but he did not do so. See United States v. Fernandez, 877 F.2d 1138, 1142 (2d Cir.1989) (holding that sentencing court correctly considered larger amount of

Page 909

cocaine where defendant did not challenge assertion in presentence report that 25 kilograms of cocaine was found in his possession). Thus, the court could properly find, by a "preponderance" of the evidence, that Blanco was involved in a "course of conduct or common scheme or plan," Guidelines Sec. 1B1.3(a)(2), that included both the actual distribution of 125 grams of cocaine and an attempt to distribute several hundred additional grams. See McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 2418-19, 91 L.Ed.2d 67 (1986) (sentencing courts before Guidelines found facts without any prescribed burden of proof at all; preponderance standard satisfies due process requirements); United States v. Wright, 873 F.2d 437, 441-42 (1st Cir.1989) (government must prove facts relied on in sentencing by "preponderance of evidence"); United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.1987), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987) (adopting preponderance standard for disputed allegations in presentencing report). See also Guidelines Sec. 6A1.3 (court may consider all relevant information that has "sufficient indicia of reliability to support its probable accuracy)"; McMillan, 477 U.S. at 92, 106 S.Ct. at 2419 ("Sentencing courts necessarily consider the circumstances of an offense in selecting the appropriate punishment"); United States v. Marshall, 719 F.2d 887, 891 (7th Cir.1983) (sentencing court may consider relevant information it could reasonably believe to be reliable where defendant given opportunity to rebut information).

2. Blanco next argues that the Guidelines do not permit a sentencing judge to take into account conduct, such as the possession (or attempted possession) of additional drugs, not covered by the counts of conviction. He notes that the additional drugs in question here were not covered by Counts I, II and III, to which he pled guilty, but, rather, they were the subject of other counts of the indictment (Counts IV, V, and VI),...

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85 practice notes
  • U.S. v. O'Neil, No. 93-1325
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 10, 1993
    ...to interpreting the sentencing guidelines. See, e.g., United States v. Emery, 991 F.2d 907, 911 (1st Cir.1993); United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989); see also U.S.S.G. Ch. 1, Pt. A, intro. comment. 3 (Nov. 1992) (stating policy that "the guidelines represent an approach......
  • U.S. v. Mobley, No. 90-3832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 14, 1992
    ...lawful sporting purposes or collection," his base offense level is decreased by 6. U.S.S.G. § 2K2.1(b)(1). 2 See United States v. Blanco, 888 F.2d 907 (1st Cir.1989) (considering quantities of uncharged drugs); United States v. Guerrero, 863 F.2d 245 (2d Cir.1988) (same); United States v. W......
  • U.S. v. Miller, No. 89-6067
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 12, 1990
    ...Guidelines for crimes not charged or convicted. United States v. Sailes, 872 F.2d 735 (6th Cir.1989); see also United States v. Blanco, 888 F.2d 907 (1st Cir.1989); United States v. Guerrero, 863 F.2d 245 (2d Cir.1988); United States v. Taplette, 872 F.2d 101 (5th Cir.), cert. denied, --- U......
  • U.S. v. Sepulveda, Nos. 92-1362
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 15, 1993
    ...8 F.3d 864, 870 & n. 10 (1st Cir.1993); United States v. Garcia, 954 F.2d 12, Page 1197 15 (1st Cir.1992); United States v. Blanco, 888 F.2d 907, 909-11 (1st Cir.1989); see also United States v. Bradley, 917 F.2d 601, 604 (1st Cir.1990) (describing drug quantity as "a key datum" for sentenc......
  • Request a trial to view additional results
85 cases
  • U.S. v. O'Neil, No. 93-1325
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 10, 1993
    ...to interpreting the sentencing guidelines. See, e.g., United States v. Emery, 991 F.2d 907, 911 (1st Cir.1993); United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989); see also U.S.S.G. Ch. 1, Pt. A, intro. comment. 3 (Nov. 1992) (stating policy that "the guidelines represent an approach......
  • U.S. v. Mobley, No. 90-3832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 14, 1992
    ...lawful sporting purposes or collection," his base offense level is decreased by 6. U.S.S.G. § 2K2.1(b)(1). 2 See United States v. Blanco, 888 F.2d 907 (1st Cir.1989) (considering quantities of uncharged drugs); United States v. Guerrero, 863 F.2d 245 (2d Cir.1988) (same); United States v. W......
  • U.S. v. Miller, No. 89-6067
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 12, 1990
    ...Guidelines for crimes not charged or convicted. United States v. Sailes, 872 F.2d 735 (6th Cir.1989); see also United States v. Blanco, 888 F.2d 907 (1st Cir.1989); United States v. Guerrero, 863 F.2d 245 (2d Cir.1988); United States v. Taplette, 872 F.2d 101 (5th Cir.), cert. denied, --- U......
  • U.S. v. Sepulveda, Nos. 92-1362
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 15, 1993
    ...8 F.3d 864, 870 & n. 10 (1st Cir.1993); United States v. Garcia, 954 F.2d 12, Page 1197 15 (1st Cir.1992); United States v. Blanco, 888 F.2d 907, 909-11 (1st Cir.1989); see also United States v. Bradley, 917 F.2d 601, 604 (1st Cir.1990) (describing drug quantity as "a key datum" for sentenc......
  • Request a trial to view additional results

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