U.S. v. Graciani, 94-1879

• Citation: 61 F.3d 70
• Decision Date: 24 July 1995
• Docket Number: No. 94-1879,94-1879
• Parties: UNITED STATES of America, Appellee, v. Edgar GRACIANI, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 70

61 F.3d 70

UNITED STATES of America, Appellee, v. Edgar GRACIANI, Defendant, Appellant.

No. 94-1879.

United States Court of Appeals First Circuit.

Submitted June 8, 1995.

Decided July 24, 1995.

Harry R. Segarra, by appointment of the court, Ponce, PR, Benicio Sanchez Rivera, Federal Public Defender, and Miguel A.A. Nogueras-Castro, Asst. Federal Public Defender, Old San Juan, PR, on various briefs, for appellant.

Guillermo Gil, U.S. Atty., Washington, DC, Jorge E. Vega-Pacheco and Edwin O. Vazquez, Asst. U.S. Attys., Hato Rey, PR, on brief, for U.S.

Before SELYA, BOUDIN and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Edgar Graciani challenges the sentence imposed below on several grounds. He also belatedly moves to remand on the basis of newly discovered evidence--an initiative that requires us to set out for the first time the procedural framework that pertains to a motion brought under Fed.R.Crim.P. 33 while a criminal case is pending on direct appeal, and, relatedly, to examine the interplay between Rule 33 and a defendant's guilty plea. In the end, we affirm the sentence and deny the motion.

I. Background

Because appellant's conviction and sentence stem from a guilty plea rather than a verdict, we derive the pertinent facts from the presentence investigation report (PSI Report), the government's statement served pursuant to D.P.R.Loc.R. 418.2(a), ¹ and the transcripts of the change-of-plea and disposition hearings. See United States v. Tejada-Beltran, 50 F.3d 105, 107 (1st Cir.1995); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

On or about January 14, 1992, appellant arranged to sell one-eighth of a kilogram of crack cocaine (125 grams) to a customer who was, in reality, a government operative. On the evening of January 15, appellant's courier Carlos Delgado Rojas (Delgado), told the agent that appellant could not supply the full 125 grams of crack then and there; instead, he proposed to deliver approximately 80 grams of crack and 45-50 grams of powdered cocaine. Once the agent agreed to the substitution, the parties consummated the transaction. Subsequent measurement revealed that Delgado had delivered 85.3 grams of crack and 54.4 grams of cocaine powder.

The agent expressed an interest in future purchases. Appellant agreed to sell him a half-kilogram of crack, to be delivered on January 24. At the appointed time, Delgado, armed, appeared at the delivery site accompanied by Juan Encarnacion Castro (Encarnacion) and a juvenile (G.R.M.). The men were apprehended and the arresting officers seized a loaded pistol. The officers also seized three plastic bags containing a white, powdery substance later determined to be sugar. ² Further investigation revealed that appellant gave the seized firearm to Delgado for protection during the drug transaction.

The grand jury indicted Graciani, Delgado, and Encarnacion on a medley of charges. Appellant was named in seven counts of the superseding indictment. He eventually agreed to plead guilty to count 1 (which charged the unlawful distribution of 85.3 grams of crack cocaine on January 15 in violation of 21 U.S.C. Sec. 841(a)(1)) and count 7 (which charged the unlawful carriage of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)). The plea agreement left the sentence in the court's discretion (subject, of course, to the constraints imposed by the sentencing guidelines).

The district court took appellant's plea and commissioned a PSI Report. The court originally sentenced appellant on July 7, 1992, ³ but then reconsidered. We do not concern ourselves with the withdrawn sentence, but focus upon the second disposition hearing (held on August 2, 1994). The court attributed to appellant (a) the weight of the crack cocaine actually supplied on January 15, (b) the weight of the powdered cocaine actually supplied on that date, and (c) the weight of the crack cocaine promised for delivery on January 24. Then, using the Drug Quantity Table, the court set appellant's base offense level (BOL) at 36. See U.S.S.G. Sec. 2D1.1(c)(4) (Drug Quantity Table) (specifying a BOL of 36 for offenses involving "[a]t least 500 G but less than 1.5 KG of Cocaine Base").

The court added six levels--four for appellant's aggravating role in the offense, see id. Sec. 3B1.1(a), and two for obstruction of justice, see id. Sec. 3C1.1--and subtracted three levels for acceptance of responsibility, see id. Sec. 3E1.1, bringing the total offense level (TOL) to 39. Given appellant's status as a first offender, these computations yielded a guideline sentencing range (GSR) of 262-327 months. The court imposed a 280-month incarcerative sentence on count 1, and added a 60-month consecutive sentence on count 7 to accommodate a mandatory minimum. See 18 U.S.C. Sec. 924(c)(1). This appeal ensued.

II. Discussion

Appellant advances a myriad of arguments in support of the appeal and the concomitant motion. We deal with these arguments seriatim.

A. Relevant Conduct

The method of the sentencing guidelines makes the quantity of narcotics attributable to a convicted drug trafficker a key datum in constructing his sentence. See United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1995); United States v. Garcia, 954 F.2d 12, 15 (1st Cir.1992); United States v. Bradley, 917 F.2d 601, 604 (1st Cir.1990). In this case, appellant castigates the district court for attributing to him a drug quantity in excess of the amount of crack cocaine involved in the count of conviction. Appellant's fusillade lands well wide of the target.

Under the guidelines, the aggregate amount of attributed drugs is to be derived from the sum total of all relevant conduct. The proper figure can only be computed, therefore, by careful consideration of all acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. Sec. 1B1.3(a)(2). "Relevant conduct is not limited to the counts of conviction"; rather, it includes both the charged conduct to which a defendant pleads and also any other conduct that qualifies under the relevancy rubric. Tejada-Beltran, 50 F.3d at 110; see also Garcia, 954 F.2d at 15; Bradley, 917 F.2d at 605; U.S.S.G. Sec. 1B1.3, comment. (backg'd). Specifically--and in direct contradiction to the position asserted by appellant--relevant conduct may include both uncharged conduct and conduct underbracing counts that have been charged and then dropped. See

Tejada-Beltran, 50 F.3d at 110; Garcia, 954 F.2d at 15.

That ends the matter. In the usual case, we review a sentencing court's drug quantity determination only for clear error. See Sepulveda, 15 F.3d at 1196; Bradley, 917 F.2d at 605. Here, the district court supportably found that the delivery of the crack and powdered cocaine on January 15, and the agreement to sell additional crack cocaine on January 24, were all part of the same course of criminal activity, and, thus, relevant conduct. We see no error.

By like token, the fact that the government seized sugar, and never recovered the half-kilogram of crack that appellant promised to supply on January 24, does not sweeten the bottom line by precluding reference to the agreed quantity in the sentencing determination. Indeed, "every court to consider the issue, including this one, has concluded that an amount of drugs which a defendant negotiates to sell may be considered as relevant conduct for base offense level purposes even if the drugs are never produced." Bradley, 917 F.2d at 604. ⁴

For these reasons, we conclude that the lower court's drug quantity calculation cannot be faulted.

B. Drug Equivalency

Appellant's next protestation, now familiar in all the circuits, criticizes the fact that the guidelines, and specifically U.S.S.G. Sec. 2D1.1, equate one kilogram of crack cocaine to one hundred kilograms of powdered cocaine for sentencing purposes. ⁵ We have squarely rejected claims that the conversion formula has a greater impact on African-Americans, and, thus, transgresses the Equal Protection Clause of the Fifth Amendment. See United States v. Singleterry, 29 F.3d 733 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 647, 130 L.Ed.2d 552 (1994). There, we held the sentencing distinction between crack and powdered cocaine to be constitutional, finding no significantly probative evidence that either Congress or the Sentencing Commission harbored a racial animus or discriminatory intent. Id. at 741. We also found a sufficient rational basis for the conversion formula and the resultant sentencing scheme. See id. at 740.

It is axiomatic that, "[i]n a multi-panel circuit, newly constituted panels are, for the most part, bound by prior panel decisions closely on point." Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.1995), petition for cert. filed, 63 U.S.L.W. 3819 (U.S. May 2, 1995) (No. 94-1804-CFX). This principle applies in criminal as well as civil cases. See, e.g., United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.), cert. denied, 502 U.S. 969, 112 S.Ct. 441, 116 L.Ed.2d 460 (1991); see also Lacy v. Gardino, 791 F.2d 980, 985 (1st Cir.) (applying principle in habeas corpus context), cert. denied, 479 U.S. 888, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986). Because Singleterry is controlling on this issue, we dismiss appellant's claim. ⁶

C. Other Adjustments

Appellant complains of two upward adjustments to his BOL, one for role in the offense and one for obstruction of justice. Neither of these complaints need occupy us for long.

1. Role in the Offense. U.S.S.G. Sec. 3B1.1(a) provides for elevating a defendant's BOL by four levels if the district court makes both a status determination (that the defendant was "an organizer or leader of a criminal activity") and a scope determination ("that the defendant's criminal activity involved five or more participants or was otherwise...