U.S. v. Shrader, s. 94-1830

• Decision Date: 05 April 1995
• Docket Number: 94-2002,Nos. 94-1830,s. 94-1830
• Citation: 56 F.3d 288
• Parties: UNITED STATES, Appellee, v. Mark H. SHRADER, Defendant, Appellant. UNITED STATES, Appellee, v. Ricky GAGNON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 288

56 F.3d 288

UNITED STATES, Appellee, v. Mark H. SHRADER, Defendant, Appellant.

UNITED STATES, Appellee, v. Ricky GAGNON, Defendant, Appellant.

Nos. 94-1830, 94-2002.

United States Court of Appeals, First Circuit.

Heard April 5, 1995.

Decided May 23, 1995.

Tony F. Soltani, with whom Soltani Law Office, Epsom, NH, was on brief, for appellant Mark H. Shrader.

Jonathan R. Saxe, with whom Twomey & Sisti Law Offices, Concord, NH, was on brief, for appellant Ricky Gagnon.

Jean L. Ryan, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOWNES, Senior Circuit Judge.

In this appeal, defendants-appellants Mark Shrader and Ricky Gagnon challenge the sentences imposed upon them after they pleaded guilty to conspiring to possess marijuana with the intent to distribute it. Having carefully reviewed the record and considered defendants' arguments, we affirm.

I.

The facts, which are derived from the presentence investigation reports and oral and documentary evidence introduced at the sentencing hearings, are as follows.

In late 1991 or early 1992, Gagnon, then a Colorado resident, met with two co-conspirators--Lee Zahler and Robert Audette--at Bea's Restaurant in Epping, New Hampshire. Knowing that Gagnon had previously distributed marijuana in New Hampshire, Audette queried Gagnon about marijuana availability. Gagnon responded that, in Colorado, Audette could obtain large quantities of marijuana for a low price.

In February 1992, Zahler and Audette flew to Denver, Colorado. Gagnon picked them up at the airport and eventually took them to his residence in Aurora, Colorado, where they examined seventeen pounds of marijuana. Ten to twelve pounds of this marijuana were high quality; the rest, however, was moldy. Zahler expressed displeasure with the overall quality and the price of the marijuana he had examined.

At some point, Shrader--Gagnon's supplier--showed up at the Aurora residence. Gagnon introduced him to Zahler and Audette as "Mark" and "Bandido Mark." Shrader's nickname stemmed from his association with the Bandidos Motorcycle Club. After Zahler informed Shrader of his displeasure with the price of the marijuana he had seen, Shrader told Zahler he would have to go to Texas--the point of origin for the marijuana Shrader's associates were bringing into Colorado--if he wanted it any cheaper.

Zahler and Audette then discussed with Shrader the possibility of their purchasing fifty pounds of marijuana in Texas. They agreed that the Texas transaction would be "middled" by Gagnon, who knew Shrader's last name and how to reach him. Zahler and Audette also agreed to purchase the seventeen pounds of marijuana they had already examined. Subsequently, they concealed it in a couple of stereo speakers and shipped it back to New Hampshire. Gagnon received $850 for putting the deal together. Thereafter, Zahler and Audette returned home.

Later that month, Gagnon called Zahler and confirmed that Shrader could and would deal with Zahler and Audette in Texas. On March 4, 1992, Zahler and Audette flew to Austin, Texas, checked into the Radisson Plaza Hotel, and called Gagnon to let him know where they were staying. Later that same day, Shrader came to the hotel in order to view the $40,000 Zahler and Audette had brought with them in order to complete the fifty-pound deal discussed in Aurora. The deal was scheduled for the next day. Zahler became concerned, however, when he learned that, on the following day, there also would be a law enforcement convention at the Radisson Plaza. He and Audette therefore moved to a Holiday Inn. Because he had no other way to contact Shrader, Zahler called Gagnon in Colorado and informed him of his and Audette's new location. Despite the move, Audette's anxiety level increased and he flew back to New Hampshire.

At 6:00 p.m. on that same evening, Shrader showed up at the Holiday Inn with a marijuana sample. Zahler rejected it as low-quality. Shrader told him he could procure better marijuana, but that it would take some time. Shrader also told Zahler of his association with the Bandidos, and that the source of the marijuana was the president of the Bandidos' local chapter. Over the next couple of days, ten telephone calls were placed from Gagnon's Aurora, Colorado, residence to the Holiday Inn at which Zahler was staying. In addition, four calls were placed from Zahler's room to Gagnon's home in Aurora. Most of these calls were of short duration.

On March 7, 1992, Zahler purchased thirty-five pounds of marijuana from Shrader and four other men. The sale took place at the Holiday Inn. Zahler paid Shrader $31,500 in cash, of which Shrader took $3,200 for himself. One of the four other men present at the sale--the one who carried the duffel bag of marijuana into Zahler's room--was wearing Bandidos paraphernalia. Shrader accompanied this man into Zahler's room. Zahler subsequently shipped the thirty-five pounds of marijuana to an acquaintance in Haverhill, Massachusetts.

On August 25, 1993, a federal grand jury returned an indictment against Shrader, Gagnon, and six others. Inter alia, the indictment charged Shrader and Gagnon with conspiring to possess marijuana with the intent to distribute it. 21 U.S.C. Sec. 846. On December 1, 1993, the grand jury returned a superseding indictment against Shrader and seven others (including one of the original six co-defendants). On December 8, 1993, Gagnon pleaded guilty to the conspiracy charge. On March 1, 1994, Shrader followed suit.

A. Shrader's Sentencing

On July 15, 1994, the district court sentenced Shrader. The court assigned Shrader a base offense level ("BOL") of eighteen based upon the fifty-two pounds of marijuana involved in the two deals. See U.S.S.G. Sec. 2D1.1(c) (November 1, 1993) (drug quantity table). The court then added two levels because it determined that Shrader was a manager/supervisor of the offense, see Sec. 3B1.1(c), subtracted two levels for acceptance of responsibility, see Sec. 3E1.1(a), and arrived at a total offense level ("TOL") of eighteen.

Shrader's criminal history, which included, inter alia, five driving-while-intoxicated ("DWI") convictions, dictated that he be assigned a criminal history category ("CHC") of III. This assignment did not, however, take into account two of the DWI convictions and one careless driving conviction which involved Shrader's use of alcohol; nor did it take into account the fact that Shrader was arrested again for DWI (and for criminal mischief) after his guilty plea but prior to sentencing in this case, and that, in revoking Shrader's bail, the federal district court had found probable cause to believe that Shrader had driven while intoxicated. See Sec. 4A1.1(c) (capping at 4 the number of CHC points to be assigned for previous sentences of less than sixty days). The record reflects that, in connection with prior sentences, Shrader had been ordered to complete substance abuse rehabilitation programs on at least three occasions.

Taking note of the uncounted conduct, the court decided to depart upward because Shrader's CHC significantly understated both his criminal history and his predisposition towards recidivist behavior. See Sec. 4A1.3 (endorsing upward departures where the CHC "significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes"). Following the procedure prescribed in Sec. 4A1.3, the court found that Shrader's criminal history most closely resembled that of a defendant with a CHC of IV. It then sentenced Shrader at the upper end of the guideline range applicable to a defendant with a TOL of eighteen and a CHC of IV: fifty-one months' imprisonment.

B. Gagnon's Sentencing

On August 31, 1994, following a two-day hearing at which Gagnon testified that he was involved in the Colorado transaction but not the Texas transaction, the district court sentenced Gagnon. Relying on affidavits submitted by Zahler and Audette which stated that Gagnon had middled the Texas transaction, testimony from New Hampshire State Trooper Robert Quinn which, inter alia, vouched for Zahler's and Audette's credibility and rebutted Gagnon's testimony that he was never involved in any drug deals other than the one in Colorado, and documentary evidence of the phone calls between Gagnon's Aurora residence and the hotels in Austin at which Zahler and Audette stayed, the court rejected Gagnon's claim regarding the Texas transaction.

The court therefore assigned Gagnon a BOL of eighteen based upon the fifty-two pounds of marijuana involved in the two transactions. The court then added two levels for obstruction of justice (finding that Gagnon perjured himself at the sentencing hearing), see Sec. 3C1.1, subtracted three levels for acceptance of responsibility, and arrived at a TOL of seventeen. There was no dispute that Gagnon's CHC was I. The court thereafter sentenced Gagnon near the lower end of the guideline range applicable to a defendant with a TOL of seventeen and a CHC of I: twenty-five months' imprisonment.

II.

On appeal, Shrader assigns error to the district court's determinations that his CHC significantly underrepresented both his criminal history and his recidivist proclivities. Shrader also challenges the court's two-level manager/supervisor enhancement under Sec. 3B1.1(c). Gagnon assigns error to the court's attribution to him of the thirty-five pounds of marijuana involved in the Texas transaction, and to its two-level enhancement for obstruction of justice. He also contends that he was deprived of his Sixth Amendment confrontation rights at his sentencing hearing. We discuss each appeal in turn.

A. Shrader's Appeal

Shrader's challenge to his CHC enhancement is two-pronged. First, Shrader contends that a CHC of III does not "significantly under-represent[ ] the...