U.S.A. v. Rivera-Maldonado

• Citation: 194 F.3d 224
• Decision Date: 04 March 1999
• Docket Number: D,No. 98-1742,RIVERA-MALDONAD,98-1742
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. IVETTEefendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 224

194 F.3d 224 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. IVETTE RIVERA-MALDONADO, Defendant, Appellant.

No. 98-1742.

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Heard March 4, 1999.

Decided Oct. 19, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Lydia Lizarribar-Masini for appellant.

Warren Vazquez, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief for appellee.

Before Torruella, Chief Judge, Coffin and Cyr, Senior Circuit Judges. CYR, Senior Circuit Judges.

Ivette Rivera-Maldonado appeals the life sentence imposed upon her for conspiring to distribute cocaine and marijuana, and aiding and abetting the use of minors in distributing controlled substances, in violation of 21 U.S.C. § 841(a)(1). We remand for resentencing.

I BACKGROUND

During a five and one-half month period in early 1995, an investigation into suspected drug distribution was conducted within the Los Laureles Housing Project ("project") in Bayamon, Puerto Rico, by the Special Investigations Bureau of the Puerto Rico Department of Justice and the United States Drug Enforcement Agency ("DEA"). Various investigators thereafter testified at trial that Maldonado had supervised a drug-distribution ring operated from her apartment in the project. Although she was never observed selling drugs, the evidence established that she used others, including minors, to sell crack and powder cocaine as well as marijuana.

The government introduced 26 surveillance videotapes depicting various drug distribution activities. Agent Cesar Martinez, who had observed numerous transactions, estimated that from 20 to 25 drug sales occurred per hour. Agent Victor Manuel Ayala-Rivera testified as an expert witness that in his experience drug distribution operations in the project normally operated three shifts daily. On that basis he opined that the Maldonado organization would have distributed more than 24 kilograms of controlled substances during the five and one-half month period spanned by the DEA investigation.

At sentencing, after determining that Maldonado should be held responsible for distributing controlled substances totaling 24 kilograms, the district court set the base offense level ("BOL") at 38. It then imposed a four-level role-in-the-offense enhancement and a two-level enhancement for employing minors, which resulted in the maximum adjusted base offense level of 43 and triggered the mandatory life-imprisonment sentence now challenged on appeal. See U.S.S.G. Sentencing Table, comment 2.

II DISCUSSION

A. The Drug-Quantity Calculations

Under U.S.S.G. § 2D1.1(c), the BOL depends in large part upon the total drug quantities involved in the offense. Insofar as the quantities seized underrepresent the demonstrated scale of a drug-distribution conspiracy, however, the sentencing court is to "approximate the [total] quantit[ies]." U.S.S.G. § 2D1.1, comment. (n.12).¹ The government must establish these drug quantities by a preponderance of the evidence. United States v. Whiting, 28 F.3d 1296, 1304 (1st Cir. 1994). Since Maldonado stands convicted of conspiring to distribute controlled substances, she is responsible for all "drugs [she] personally handled or anticipated handling, and, under the relevant conduct rubric, for drugs involved in additional acts that were reasonably foreseeable by [her] and were committed in furtherance of the conspiracy." United States v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993).

Maldonado first contends that the ultimate drug-quantity finding made by the district court must be set aside because it is based on speculative estimates derived from unreliable evidence and improper extrapolations.² Since the instant offenses involved various controlled substances, the sentencing court was required to "determine both the amount and the kind of 'controlled substances' for which [the] defendant should be held accountable -- and . . . impose a sentence that varie[d] depending upon amount and kind." Edwards v. United States, 118 S. Ct. 1475, 1477 (1998). A reasonably reliable differentiation among the various types of controlled substances is particularly important in these cases, since much more severe sentencing ranges are prescribed in crack-cocaine distribution offenses for which the applicable offense levels, see U.S.S.G. § 2D1.1(c)(8)-(14), may increase with each additional gram.³ See Sepulveda, 15 F.3d at 1198.

Although the sentencing court may rely on reasonable estimates and averages in arriving at its drug-quantity determinations, their probable accuracy must be founded on adequate indicia of reliability, United States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995), and demonstrable record support, see, e.g., United States v. Marrero-Ortiz 160 F.3d 768, 780 (1st Cir. 1998) ("[Absent] particularized findings to support the assigned BOL, we have no principled choice but to vacate the sentence and remand for further findings and resentencing."); United States v. Welch, 15 F.3d 1202, 1215 (1st Cir. 1993); Sepulveda, 15 F.3d at 1198. Nor may a criminal sentence be predicated simply upon conclusory prosecutorial assessments that the extensiveness of the conspiracy suggested a "substantial amount of narcotics business." See Marrero-Ortiz, 160 F.3d at 779-80 ("[W]e cannot uphold a drug quantity calculation on the basis of hunch or intuition."); United States v. Miele, 989 F.2d 659, 668 (3d Cir. 1993) ("[A] determination that [the] drug activity was substantial does not translate readily into a specific drug quantity finding, which is the ultimate issue for sentencing purposes.").

1. The Drug-Quantity Calculation

The district court purportedly arrived at its BOL 38 determination by adopting the drug-quantity calculations set out in Maldonado's objections to the Presentence Report ("PSR").⁴ The record plainly reflects, however, that in so doing the district court utilized incorrect metric conversions. See supra note 4. That is, as a unit of mass/weight, one gram equals 1,000 milligrams, rather than one milligram, see U.S.S.G. § 2D1.1, comment. (n.10) (Measurement Conversion Table), and one kilogram equals 1,000,000 milligrams, not 100,000 milligrams, id. Accordingly, based on the proper metric conversions the BOL should have been 24 rather than 38.

Although the district court stated that its BOL 38 determination was supported by the testimony of DEA Agent Rivera, we can discern no record support for its assertion. Instead, Agent Rivera testified that a drug point at the Los Laureles project would "average . . . between 150 and 180 grams" of controlled substances per day,⁵ the bulk of which would be cocaine. Moreover, shortly thereafter the district court asserted that it was relying on Maldonado's objections to the PSR in setting the BOL. See supra note 4. Finally, although the PSR opined that "[t]he investigation established" that Maldonado's drug trafficking organization "had the capability to distribute more than five (5) kilograms of cocaine base (crack)," and that "the amounts of narcotics distributed during the period of the conspiracy was [sic] approximately 24 kilograms[,]" the PSR neither breaks down the 24 kilograms by drug type, nor indicates how it was calculated.

2. The Drug-Quantity Evidence at Trial

At trial, after viewing the drug transactions depicted on a two-hour composite videotape, Agent Martinez estimated that approximately 20 to 25 transactions occurred hourly at the Maldonado drug point. Agent Martinez acknowledged, however, that this composite videotape formed the sole foundation for his drug-quantity estimate because it disclosed a lot of drug activity. Nor was Agent Martinez able to identify which individual surveillance videos -- among the 26 admitted at trial -- comprised the foundation for the composite videotape upon which the drug-quantity estimate was based. Finally, he acknowledged that he had never estimated the number of drug transactions which would have occurred during a slow period.

The record on appeal contains no other discernible documentary or testimonial evidence upon which to predicate a reasonably reliable determination that the two-hour period captured on the composite videotape utilized at trial by Agent Martinez was reasonably representative, either as to the volume or the variety of drug sales at the Maldonado drug point during the six-month indictment period.⁶ Nor did the district court articulate detailed findings which would enable us to determine whether its drug-quantity determinations were reasonably reliable notwithstanding its erroneous metric conversions. See supra Section II.A.1. For instance, it neither mentioned Agent Martinez nor his trial testimony, even though 26 surveillance videos were admitted in evidence through Agent Martinez as he described what each depicted.

Moreover, for the most part Martinez simply stated that the videotaped transactions involved "controlled substances," without identifying the drug type. The surveillance videos themselves depicted three controlled marijuana sales and one powder cocaine sale to informants, without any indication of the respective drug quantities involved in those transactions. In addition, Agent Martinez testified that he had witnessed two marijuana sales, without mentioning any other relevant particulars. Finally, he estimated the aggregate daily drug volume at "about 150, 180 grams," without apportioning it among the three controlled substances sold at the Maldonado drug point.⁷

Nor do the respective drug-type quantities involved in the twelve controlled buys -- marijuana (3) (9.9 grams); crack cocaine (4) (3.8 grams); powder cocaine (5) (3.05 grams) -- afford sufficient support for apportioning the aggregate drug-quantity estimate among the three illegal drugs sold at the Maldonado drug...