U.S. v. Santiago

• Decision Date: 22 June 1990
• Docket Number: D,No. 1331,1331
• Citation: 906 F.2d 867
• Parties: UNITED STATES of America, Appellee, v. Alvin SANTIAGO, Defendant-Appellant. ocket 90-1056.
• Court: U.S. Court of Appeals — Second Circuit

Page 867

906 F.2d 867

UNITED STATES of America, Appellee, v. Alvin SANTIAGO, Defendant-Appellant.

No. 1331, Docket 90-1056.

United States Court of Appeals Second Circuit.

Argued May 30, 1990.

Decided June 22, 1990.

Charles A. Caruso, Asst. U.S. Atty., Rutland, Vt. (George J. Terwilliger, III, U.S. Atty. for the District of Vermont, John-Claude Charbonneau, Asst. U.S. Atty., Rutland, Vt., on the brief), for appellee.

Carroll, George & Pratt, Rutland, Vt. (John J. Kennelly, Thomas A. Zonay, Rutland, Vermont, of counsel), submitted a brief for defendant-appellant.

Before LUMBARD, KEARSE, and MINER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Alvin Santiago appeals from a final judgment of conviction entered in the United States District Court for the District of Vermont following his plea of guilty before Franklin S. Billings, Jr., Chief Judge, to six counts of an indictment charging him with, inter alia, use of the telephone to commit a felony, in violation of 21 U.S.C. Sec. 843(b) (1988) (count 3); interstate travel with the intent to distribute narcotics, in violation of 18 U.S.C. Secs. 1952 and 2 (1988) (count 4); and distribution of cocaine and heroin, and possession of those narcotics with intent to distribute, all in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (counts 5-8). He was sentenced principally to four concurrent 66-month terms of imprisonment on counts 5-8, and two concurrent 48-month terms of imprisonment on counts 3 and 4, to run concurrently with the sentences on counts 5-8. On appeal, Santiago contends principally (1) that in calculating his base offense level under the Sentencing Guidelines ("Guidelines"), the court should not have considered amounts of narcotics that were not seized and with which he was not charged in the indictment, and (2) that the court should not have denied him credit for acceptance of responsibility with respect to his offense conduct. Though we reject

Santiago's first contention, there is merit in the second in light of our recent decision in United States v. Oliveras, 905 F.2d 623 (2d Cir.1990) (per curiam). Accordingly, we affirm in part, vacate in part, and remand for resentencing.

I. BACKGROUND

During a 1988 investigation, law enforcement agents determined that one Michael Shattuck was a source of heroin that was being distributed in northeastern Vermont. From February through August 1988, Shattuck traveled from Massachusetts to Vermont two to three times per month and brought with him on each occasion 150 to 200 .03-.04-gram bags of heroin. He was arrested in August and eventually agreed to cooperate in an investigation into his sources of supply.

Shattuck identified one of his sources as Santiago, stating that he had obtained 300 to 500 bags of heroin from Santiago on approximately a dozen occasions. Santiago resided in the Bronx, New York, and telephone toll records seized by the agents revealed numerous calls by Shattuck to Santiago. Shattuck said he had made these calls to arrange for heroin purchases; he would then sometimes travel to New York to obtain the narcotics, but usually Santiago would deliver them to him in Connecticut. In March 1989, the agents had Shattuck telephone Santiago and ask him to deliver 1,000 bags of heroin to Shattuck in Vermont. Santiago initially suggested that they meet where they had met the time before, but eventually he agreed to deliver the heroin, plus two ounces of cocaine, to Shattuck in Vermont.

On April 7, Santiago, accompanied by Priscilla Santiago ("Priscilla"), his common-law wife, went to Brattleboro, Vermont; there they met in a motel room with Shattuck, who was wearing a wire. Santiago was heard to say he had the "coke and heroin." Santiago and Shattuck then went out to a vehicle, where Santiago delivered 1,000 bags of heroin and two ounces of cocaine to an undercover agent. Santiago was promptly arrested. The total weight of the heroin delivered was approximately 50 grams; the total weight of the cocaine was 52.94 grams.

After his arrest, Santiago stated that he had come to Vermont for the purpose of supplying Shattuck with heroin and cocaine and admitted that he had sold 300 to 500 bags of heroin to Shattuck approximately five times in the past. Priscilla too was arrested, and she likewise stated that Santiago had previously sold Shattuck narcotics on a number of occasions.

Santiago and Priscilla were indicted in an eight-count indictment. Santiago was named in seven counts: the six substantive counts described above, i.e., the telephone and travel offenses (counts 3 and 4) and the narcotics possession and distribution offenses (counts 5-8), plus one count of conspiring with Priscilla to distribute, and to possess with intent to distribute, heroin and cocaine (count 1). Priscilla was similarly charged in seven counts: the conspiracy count (count 1), use of the telephone to facilitate the distribution of narcotics (count 2), interstate travel to carry on an unlawful activity (count 4), and the four counts of narcotics possession and distribution (counts 5-8). Both Santiago and Priscilla initially pleaded not guilty to all counts.

In August 1989, Santiago changed his plea to one of guilty to counts 3-8, though he adhered to his plea of not guilty to the conspiracy count. Priscilla maintained her plea of not guilty and went to trial in October 1989; the jury found her guilty on all counts. Thereafter, with leave of the court, the government dismissed the conspiracy count against Santiago.

A presentence report prepared with respect to Santiago recommended, inter alia, that Santiago's base offense level be calculated with reference to (a) the heroin and cocaine Santiago delivered on April 7, and (b) all of the heroin he had sold to Shattuck theretofore. Using a Guidelines formula that treats one gram of cocaine as the equivalent of .2 grams of heroin, see Guidelines Sec. 2D1.1 Commentary, Application Note 10, Drug Equivalency Tables, the report calculated that the 52.94 grams of cocaine delivered on April 7 translated to The presentence report also pointed out that Santiago maintained that he had not made Priscilla aware of the contents of the package delivered on April 7. It noted further that Santiago sought to minimize his role both in the April 7 delivery and in the prior sales, claiming that he was merely a reluctant go-between. The report recommended that, in light of these stances, Santiago not be given any reduction in offense level for acceptance of responsibility for his offense.

10.588 grams of heroin. Adding the latter to the 50 grams of heroin delivered on that date, the report concluded that the April 7 quantity of narcotics was the equivalent of 60.588 grams of heroin. As to the prior transactions, the report, which assumed .05 grams of heroin per bag (the average per-bag amount delivered on April 7), calculated that, using the maximum number of bags and occasions described by Shattuck, Santiago had previously delivered to him 300 grams of cocaine (.05 X 500 X 12); alternatively, using the minimum number of bags and occasions admitted by Santiago in his postarrest statement, Santiago had previously delivered to Shattuck at least 75 grams (.05 X 300 X 5). Adding the estimated 75- to 300-gram prior deliveries to the 60.588-gram April 7 delivery, the report concluded that Santiago's base offense level should be calculated on the basis of 135.588 to 360.588 grams. The report noted that either quantity fell within the 100-400 gram category of the Guidelines, resulting in a base offense level of 26.

Santiago objected to portions of the presentence report, contending, inter alia, (1) that the alleged but uncharged prior narcotics transactions should not be considered, and (2) that he should be given credit for accepting responsibility for the April 7 delivery. An evidentiary hearing was held, focusing principally on the first objection.

At the hearing, a Vermont State Police officer testified to, inter alia, Shattuck's statement that Santiago had sold him 300 to 500 bags of heroin on a dozen occasions, Santiago's postarrest statement that he had sold heroin to Shattuck on five occasions, and Priscilla's statement that Santiago had engaged in transactions with Shattuck on a number of occasions. The officer also testified that telephone toll records supported Shattuck's statement that he had obtained narcotics from Santiago on about a dozen occasions.

Santiago testified at the hearing and denied that he had previously sold narcotics to Shattuck. He also denied telling the law enforcement officers that he had previously distributed narcotics to Shattuck. He sought to explain the incriminating statements he had made in taped telephone conversations with Shattuck by testifying that he had been forced to make those statements by an individual named "Pedro." Santiago said he was merely a go-between in the April 7 delivery to Shattuck.

At the close of the hearing, the district court stated that Santiago's version of the facts was not credible and found that Santiago had delivered heroin to Shattuck on some 12 occasions. The court also found that Santiago had not entirely accepted responsibility for his actions and hence was not entitled to credit under Sec. 3E1.1 of the Guidelines. The court formalized its findings in a written "Statement of Reasons for Sentence" that stated, in pertinent part, as follows:

[Santiago] possessed with the intent to distribute and distributed between 135.588 grams of heroin equivalent and 360.588 grams of heroin equivalent. The guidelines provide that offenses involving between 100 and 400 grams of heroin equivalent have a base offense level of 26. Thus, the base offense level is 26.

....

... The court finds that the defendant has not accepted responsibility. The defendant admits his conduct for the count of conviction, but indicates that he did not make his codefendant/girlfriend aware of the content of the package (heroin). He...