U.S. v. Lindia

• Decision Date: 06 March 1996
• Docket Number: No. 95-2200,95-2200
• Parties: UNITED STATES, Appellee, v. Frank J. LINDIA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1154

82 F.3d 1154

UNITED STATES, Appellee, v. Frank J. LINDIA, Defendant, Appellant.

No. 95-2200.

United States Court of Appeals, First Circuit.

Heard March 6, 1996.

Decided April 18, 1996.

Appeal from the United States District Court for the District of Maine [Hon. D. Brock Hornby, U.S. District Judge].

Edward S. MacColl with whom Thompson, McNaboe, Ashley & Bull, Portland, ME, was on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and Jonathan R. Chapman, Assistant United States Attorney, Portland, ME, were on brief, for appellee.

BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Pursuant to a plea agreement with the government, defendant-appellant Frank J. Lindia pleaded guilty to a one-count indictment charging that, from December 1994 to January 31, 1995, he and codefendants John C. Mosby and Augustine T. Aguirre conspired to possess with intent to distribute in excess of fifty kilograms of marijuana, in violation of 21 U.S.C. § 846, 841(a)(1) and (b)(1)(C). On appeal, Lindia claims that the district court erred by: including a negotiated but unconsummated sale of 150 pounds of marijuana in the sentence calculation; sentencing him as a career offender; and refusing to depart downward from the sentence on his claim that the career-offender criminal history category significantly overrepresented his past criminal conduct.

I. Pertinent Background and Prior Proceedings

A. Facts

We accept the facts as set forth in the uncontested portions of the Presentence Investigation Report ("PSR") and the sentencing hearing transcript, see United States v. Muniz, 49 F.3d 36, 37 (1st Cir.1995), reciting additional facts below as necessary.

In late 1994, federal and Maine law enforcement authorities, with the help of a cooperating individual (CI), began investigating Lindia's activities. Soon thereafter, the CI (who had been the "buyer" in monitored marijuana transactions) introduced to Lindia an "associate," undercover DEA Special Agent Mike Cunniff, who would handle further transactions. During the ensuing negotiations, Agent Cunniff was introduced to Lindia's associates, Aguirre and Mosby.

On January 20, 1995, Agent Cunniff met Mosby at Mosby's home in Jamestown, Rhode Island, where Mosby delivered to Cunniff forty-eight pounds of marijuana. On January 31, 1995, Lindia and Aguirre met Agent Cunniff in Portland, Maine, to receive payment for the marijuana. The meeting took place in a hotel room that government agents had previously set up with videotape equipment. During the meeting, Agent Cunniff delivered $62,400 in cash and commented on the failure of Aguirre and Lindia to accept the payment earlier, as they had promised. Concerned about his customer's unhappiness, Lindia apologized for the delay and indicated that more marijuana was available. The three men then planned for an additional thirty pounds of marijuana to be delivered the next day.

Also during the videotaped meeting, Lindia told Cunniff, "We have something else ... that we would like to send up to you." Both Lindia and Aguirre then spoke of a subsequent shipment of marijuana and indicated that they could probably send Cunniff "about" 150 or 200 pounds, depending upon the capacity of the vehicle in which it would travel. ¹ Lindia stated that the lot could be delivered in a little over one week's time. After counting out the cash payment for the forty-eight pound lot and discussing details of the next day's thirty-pound delivery, Lindia and Aguirre left the hotel room and were promptly arrested. Lindia eventually pleaded guilty and cooperated with the authorities.

B. Sentencing

The district court sentenced Lindia as a career offender under 28 U.S.C. § 994(h), including as a predicate offense Lindia's Rhode Island conviction on a nolo contendere plea for possession with intent to deliver marijuana. Under the Career Offender guideline, U.S.S.G. § 4B1.1, the court was required to determine the offense statutory maximum in order to ascertain the applicable offense level. Because the court included the negotiated 150-pound lot in the amount of drugs attributable to Lindia, it found the offense statutory maximum to be twenty years' imprisonment under 21 U.S.C. § 841(b)(1)(C).

Pursuant to the Career Offender guideline, the statutory maximum of twenty years yielded an offense level of thirty-two with a criminal history category of VI. Lindia asked the court to depart downward on the basis that the criminal history category overrepresented his criminal history; but the court refused, specifically ruling that it did not have the authority to do so. The court did grant a three-level downward adjustment in the offense level for acceptance of responsibility, resulting in a total offense level of twenty-nine and a guideline imprisonment range of 151 to 188 months. On the government's motion under U.S.S.G. § 5K1.1, the court departed downward from the guideline range for Lindia's substantial assistance and imposed a sentence of 108 months' incarceration.

II. Discussion

We review the sentencing court's findings of fact for "clear error" and generally defer to its credibility determinations. United States v. Muniz, 49 F.3d 36, 41 (1st Cir.1995); United States v. Whiting, 28 F.3d 1296, 1304 (1st Cir.), cert. denied, --- U.S. ----, ----, ----, ----, 115 S.Ct. 378, 498, 499, 532, 130 L.Ed.2d 328, 408, 435 (1994). We review de novo the court's interpretation of the guidelines and application of law. Muniz, 49 F.3d at 41.

A. Drug Quantity Calculation

The extent of the penalty for a controlled-substance conviction is determined in large part by the amount of drugs properly attributable to the defendant. United States v. Campbell, 61 F.3d 976, 982 (1st Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1556, 134 L.Ed.2d 657 (1996). On appeal, Lindia challenges the district court's inclusion of the negotiated but unconsummated 150-pound lot in the calculation of his sentence. Without this quantity, he would have received the benefit of 21 U.S.C. § 841(b)(1)(D), which provides for a maximum imprisonment term of only five years "[i]n the case of less than 50 kilograms of marijuana." ² Use of this penalty provision would have yielded, under the Career Offender guideline, a pre-adjustment offense level of seventeen instead of thirty-two. See U.S.S.G. § 4B1.1. ³

The PSR stated that Lindia was responsible for 103.5 kilograms of marijuana, representing a combination of the forty-eight pound, thirty-pound, and 150-pound lots. ⁴ Lindia objected to this conclusion, asserting, inter alia, that the 150-pound lot "never existed" and was not the object of any conspiracy, and that his statements about it constituted mere "puffing" in an attempt to gain Agent Cunniff's business confidence. At the sentencing hearing, Lindia testified that the 150-pound lot had never been previously discussed or planned and that no steps had been taken to obtain it. Lindia repeated that the discussion was meant to impress Agent Cunniff, and testified that only after obtaining payment for the forty-eight and thirty-pound lots did he intend to actually seek the additional 150 pounds of marijuana.

The district court found, under a preponderance-of-the-evidence standard, that the proposed delivery of the 150 pound lot had not been discussed or planned before the videotaped meeting. The court also found, however, that based on Lindia's and Aguirre's statements, the 150 pounds of marijuana added to, and were part of, the charged conspiracy. The court found that Lindia and Aguirre intended to produce that marijuana and were reasonably capable of doing so and thus, the 150 pounds were includable in the offense conduct for the purposes of the statutory maximum and the Sentencing Guidelines.

Application note 12 of U.S.S.G. § 2D1.1 provides:

In an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.

We have interpreted this note as requiring the sentencing court to include the negotiated amount in the drug quantity calculation unless it finds both that the defendant did not have the intent to produce the amount, and that he lacked the capacity to deliver it. United States v. Wihbey, 75 F.3d 761, 777 (1st Cir.1996); Muniz, 49 F.3d at 39. Application note 12 applies for the purposes of both the Sentencing Guidelines and the statutory penalties under 21 U.S.C. § 841(b). Muniz, 49 F.3d at 39-40 (indicating that five-year difference in statutory mandatory minimum was dependent upon drug quantity calculated under application note 12); United States v. Pion, 25 F.3d 18, 25 n. 12 (1st Cir.) (noting that drug quantity finding under note 12 provides threshold calculus for mandatory minimums), cert. denied, --- U.S. ----, 115 S.Ct. 326, 130 L.Ed.2d 286 (1994).

Lindia contends that due process requires the government to prove drug quantity beyond a reasonable doubt. Drug quantity, however, is not an element of the offense of conviction, 21 U.S.C. §§ 846 and 841(a)(1), but is typically relevant only for determining the penalty. See 21 U.S.C. § 841(b); United States v. Campbell, 61 F.3d 976, 979-80 (1st Cir.1995) (citing United States v. Lam Kwong-Wah, 966 F.2d 682, 685 (D.C.Cir.), cert. denied, 506 U.S. 901, 113 S.Ct. 287, 121 L.Ed.2d 213 (1992)); United States v. Patterson, 38 F.3d 139, 143-44 (4th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1968, 131 L.Ed.2d 858 (1995). As such, drug quantity for purposes of § 841(b) is determined by the...