U.S. v. Mocciola

• Decision Date: 06 September 1989
• Docket Number: No. 89-1471,89-1471
• Citation: 891 F.2d 13
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Gerard Peter MOCCIOLA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 13

891 F.2d 13

UNITED STATES of America, Plaintiff, Appellee, v. Gerard Peter MOCCIOLA, Defendant, Appellant.

No. 89-1471.

United States Court of Appeals, First Circuit.

Heard Sept. 6, 1989.

Decided Dec. 5, 1989.

Steven D. Silin, with whom Paul F. Macri and Berman, Simmons & Goldberg, P.A., Lewiston, Me., were on brief, for defendant, appellant.

F. Mark Terison, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., was on brief, for plaintiff, appellee.

Before SELYA, Circuit Judge, ALDRICH and GIBSON, ^* Senior Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

Defendant-appellant Gerard Peter Mocciola, awoke one August morning in 1988 to the sounds of intruders shouting and his dog barking in his home. In the upstairs bedroom where he and his wife had been sleeping, defendant grabbed a loaded Browning Arms semi-automatic pistol and stepped into the darkened hallway. There he confronted the intruders: Maine State Police officers conducting a drug raid. One officer yelled at defendant to drop his gun. He did. In their subsequent search of the bedroom, police discovered three additional weapons, a total of 291 grams of cocaine in four different locations, a set of digital scales, cutting agents, and $35,000 in cash.

In the criminal proceedings that followed his arrest, the grand jury issued a five-count indictment charging defendant with various violations of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 924(c)(1). He elected to go to trial on Count V, the weapons charge, ¹ and to plead guilty to Count IV, one of the cocaine possession charges. The three remaining counts were dropped. During the trial, defendant testified extensively concerning his cocaine use and dealing and the problems these had caused for his family. He also testified that the pistol had nothing to do with his illegal drug activity, but was present solely to protect his home and family. The jury acquitted.

Some months later the court sentenced defendant on Count IV, the cocaine possession charge. Based on the presentence report and applying the Federal Sentencing Guidelines, the court imposed a sentence of 78 months imprisonment, a term of five years of supervised release, a fine of $15,000 to be paid immediately, an additional fine of $98,400 to be paid during the period of incarceration and supervised release, and a special felony assessment of $50. On this appeal defendant asserts that the court improperly considered uncharged conduct in determining his sentence, and improperly applied the weapons enhancement despite his acquittal on that charge. Defendant also challenges the constitutionality of the Sentencing Guidelines as applied by the district court. We affirm, noting additional facts as needed.

1. Background

Since their promulgation by the United States Sentencing Commission pursuant to the Sentencing Reform Act of 1984, codified at 18 U.S.C. §§ 3551 et seq. and 28 U.S.C. §§ 991-998, the Sentencing Guidelines have been the subject of repeated attack. Earlier this year, in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the Court upheld the Guidelines, finding no constitutional infirmity in the legislation or separation of powers problem in Congress' "placement" of the Sentencing Commission within the judicial branch of government. Id. at 664. Constitutional challenges are now limited to whether the Guidelines are constitutional as applied in a particular case.

The purpose of the Guidelines is not to remove the discretion judges historically have exercised when determining the appropriate sentence for an individual offender, but rather to reduce the often "unjustifi[ed]" and "shameful" consequences of the indeterminate-sentencing system of the past, when similarly situated offenders frequently received greatly disparate sentences. Mistretta, 109 S.Ct. at 651 (quoting S.Rep. No. 98-225 (1983)). For this reason the Commission promulgated a set of Guidelines based predominantly on a "charge offense" rather than "real offense" system. In other words, the offender would be punished for "the offense for which he was convicted," as distinguished from the facts of the particular case. United States v. Guerrero, 863 F.2d 245, 248 (2d Cir.1988). This decision was a compromise, see Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1 (1988), and it is widely recognized that the "charge offense" approach is not pure; "it has a number of real elements." Guerrero, 863 F.2d at 248 (citing Sentencing Guidelines ch. 1, pt. A, § 4(a), at p. 1.5). Some "flexibility [is retained] to provide individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices." Id.; see United States v. Seluk, 873 F.2d 15 (1st Cir.1989) (per curiam). As a general matter, therefore, although weighted toward the charge offense end of the spectrum, the Sentencing Guidelines permit the sentencing court the discretion to consider certain uncharged conduct, within the limits delineated below.

2. Uncharged Conduct

There is no dispute concerning the process by which the court arrived at defendant's sentence. When preparing the presentence report the probation officer reviewed defendant's sworn testimony at his earlier trial and estimated that during the approximately eighteen months before his arrest, defendant had used or sold between 1291 and 1648 grams of cocaine. According to the Drug Quantity Table contained in U.S.S.G. § 2D1.1, this established a Base Offense Level of 26. Guideline § 2D1.1(b)(1) permits a two-level enhancement for firearms possession, which was then added. Guideline § 3E1.1(a) permits a two-level reduction for acceptance of responsibility, which was then subtracted, ² leaving the final Base Offense Level at 26. The probation officer then computed defendant's criminal history and set it at category I. Combining these two calculations, the Sentencing Table in U.S.S.G. § Ch. 5, Pt. A established a sentencing range from 63-78 months. Finding defendant "a principal cocaine trafficker in the Androscoggin County Maine area," and "the magnitude of the trafficking activities [is] deserving of serious punishment," the court imposed the most severe sentence permitted by the Guidelines.

The Sentencing Guidelines specifically provide that the sentencing court consider all "acts or omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2). The background commentary further provides that, "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they are part of the same course of conduct or part of a common scheme or plan as the court of conviction." Id., comment. (backg'd). Under our deferential standard of review, whether uncharged drugs are part of a common scheme or plan is a factual finding we will disturb only if clearly erroneous. United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989). Because the court based its finding that "all of the drugs in question were sold as part of a common scheme or plan" on defendant's own testimony at his trial on Count V, we find a reasonable basis for the sentence and no clear error. United States v. Ehret, 885 F.2d 441, 444 (8th Cir.1989).

The contention that using trial testimony in this manner chills the right to a jury trial and, in effect, penalizes candor, we have already answered. "It is well established that statements made for the purpose of one case are not necessarily immunized from use in other trials." United States v. Perez-Franco, 873 F.2d 455, 460 (1st Cir.1989). Defendant was not compelled to testify about his illegal drug habit and dealing; he did so freely; the fifth amendment was waived. Id. at 461. So long as the information concerning the quantity of drugs involved has "sufficient indicia of reliability to support its probable accuracy," the sentencing judge may consider it. United States v. Roberts, 881 F.2d 95, 106 (4th Cir.1989) (quoting U.S.S.G. § 6A1.3(a), p.s.). Defendant's voluntary sworn testimony clearly meets this standard.

3. The Acquittal

Although we have not specifically addressed the issue of whether a sentencing court may consider a prior, related acquittal under the Sentencing Guidelines, several other circuits have done so. See, e.g., United States v. Isom, 886 F.2d 736, 738 & n. 3 (4th Cir.1989). ("A verdict of acquittal demonstrates only a lack of proof beyond a reasonable doubt; it does not necessarily establish defendant's innocence ... For facts at sentencing, the burden of proof by a preponderance obviously differs in a significant way from proof beyond a reasonable doubt."); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per curiam) ("Although the jury may have determined that the government had not proved all of the...