U.S. v. Sklar, Nos. 90-1450

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore SELYA, Circuit Judge, COFFIN and BOWNES; SELYA
Citation920 F.2d 107
PartiesUNITED STATES of America, Appellant, v. David SKLAR, Defendant, Appellee. UNITED STATES of America, Appellee, v. David SKLAR, Defendant, Appellant. . Heard
Docket NumberNos. 90-1450,90-1451
Decision Date13 September 1990

Page 107

920 F.2d 107
3 Fed.Sent.R. 306
UNITED STATES of America, Appellant,
v.
David SKLAR, Defendant, Appellee.
UNITED STATES of America, Appellee,
v.
David SKLAR, Defendant, Appellant.
Nos. 90-1450, 90-1451.
United States Court of Appeals,
First Circuit.
Heard Sept. 13, 1990.
Decided Dec. 3, 1990.

Page 108

Kevin O'Regan, Asst. U.S. Atty., Ware, Mass., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for the U.S.

Michael P. Ascher, Springfield, Mass., for David Sklar.

Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

In computing the guideline sentencing range (GSR) applicable to this case, the district court followed the government's urgings. The court then departed downward in imposing sentence. This Solomonic solution, cf. 2 Kings 3:16-28, apparently left both sides yearning for a whole baby. Cross-appeals ensued.

I. HOW THE SENTENCE EVENTUATED

On January 24, 1989, defendant David Sklar was arrested near the Stockbridge, Massachusetts post office in possession of an Express Mail package containing approximately 75 grams of cocaine. A federal grand jury subsequently returned an indictment charging Sklar with conspiracy to traffick in drugs and possession of cocaine with intent to distribute it. See 21 U.S.C. Secs. 846, 841(a)(1). There was considerable pretrial skirmishing, occupying many months. Eventually, however, defendant pled guilty to both counts of the indictment.

On March 9, 1990, a sentencing hearing was held and evidence taken. The district court resolved defendant's objections, made a series of findings, and proceeded to calculate the GSR. See generally United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.) (explaining method of computation under federal sentencing guidelines), cert. denied, --- U.S. ----, 110 S.Ct. 177,

Page 109

107 L.Ed.2d 133 (1989); United States v. Wright, 873 F.2d 437, 440 (1st Cir.1989) (similar). No useful purpose would be served by retracing the details of that computation. For introductory purposes, we need observe only that the court determined the GSR to be 37-46 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table) (adjusted offense level of 20; criminal history category II). The court then departed downward, citing defendant's posture of rehabilitation during the interval between indictment and sentencing, as well as defendant's cooperation with the government. The defendant was sentenced to serve 30 months in prison, plus a term of supervised release.

On appeal, Sklar challenges the "relevant conduct" component of the GSR calculation while the prosecution challenges the downward departure. We address these points seriatim, memorializing particular facts to the extent required in connection with each segment of our discussion.

II. RELEVANT CONDUCT

Sklar notes that the district court's computation of the GSR rested upon its finding that his relevant criminal conduct involved at least 300 grams of cocaine. See U.S.S.G. Sec. 2D1.1(c)(11) (rev. ed. 1989) (Drug Quantity Table) (establishing base offense level of 22 where conduct implicates "300 G but less than 400 G of cocaine"). 1 The arrest netted only 75 grams and Sklar claims that the government never proved that he handled, or should be held to account for, any more copious quantities.

A. The Facts.

The pertinent facts are these. The envelope accepted on January 24, 1989 was the twelfth similar Express Mail package Sklar had received since June 1, 1988. The first 11 packages were delivered without incident. They were never produced in court, inspected by government agents, or chemically tested. The known data concerning them derived mostly from postal records. The following pattern emerged:

Package No. Receipt No. Date Sent Gross Weight
                 12 B51550087 1/20/89 11.3 oz.
                 11 B51538727 11/3/88 5 oz.
                 10 B70439299 10/26/88 5.8 oz.
                 9 B51539015 10/12/88 8 oz.
                 8 B06948768Y 9/26/88 9 oz.
                 7 B06948776Y 8/10/88 7 oz.
                 6 B74509091 8/1/88 8.3 oz.
                 5 B74509084 7/20/88 7 oz.
                 4 B74509090 6/30/88 1.9 oz.
                 3 74509093 6/15/88 5 oz.
                 2 74509094 6/9/88 10 oz.
                 1 74563671 6/1/88 3 oz.
                

----------

The sender's receipts on file were all inscribed in what appeared to be the same handwriting and bore a series of apparently fictitious trade names signifying the originator(s). At various times, the receipts reflected four return addresses in the Boca Raton area (three of which were nonexistent). Without exception, the mailings originated from southern Florida and were addressed to defendant.

The first 10 packages were sent to a postal box in Monterey, Massachusetts which Sklar and his brother, Neal, controlled. The defendant gave up that box and, on November 1, 1988, rented a new one in Stockbridge. The eleventh package was sent there. Unbeknownst to Sklar, however, the repeated mailings from Florida had triggered a Postal Inspection Service

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Drug Distribution Profile, see United States v. Sklar, 721 F.Supp. 7, 11 (D.Mass.1989), and the newly hired box was placed under surveillance. On January 23, 1989, the surveillance yielded fruit; an Express Mail package addressed to Sklar arrived in Stockbridge. The package weighed 11.3 ounces and carried a return address of R.J. Textils [sic], 1470 Southwest 5th Ave., Boca Raton, Florida. A check revealed that there was no "R.J. Textils" or similarly named entity at the stipulated return address. The next day, postal inspector Moores obtained a search warrant, opened the package, and determined that it contained approximately three ounces of cocaine.

Warming to the chase, the postal authorities immediately placed a notice in defendant's box to the effect that an Express Mail package had arrived. Neal Sklar retrieved the notice. Later that day, defendant picked up the package. When arrested, he admitted knowing the contents and said that he had recently sent money to his source in payment for the twelfth package and for an antecedent debt. The interested reader is referred to the district court's opinion refusing suppression for further facts concerning the circumstances of the defendant's apprehension. See id.

In determining the quantity of drugs attributable to the counts of conviction, the district court inferred that the periodic mailings to Sklar from a fictitious entity at a series of fictitious addresses were of the same ilk as the package actually intercepted. Concluding that all the mailings were part of a common scheme and estimating the quantity of contraband involved, the court found that defendant had handled upward of 300 grams of cocaine in an uninterrupted course of criminal conduct.

B. What Is Relevant Conduct?

Under the sentencing guidelines as they relate to most narcotics cases, the base offense level--a critical datum in arriving at the GSR--is predicated in large part on the amount of drugs involved. The drug quantity is derived from all acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction," whether or not charged in the indictment. U.S.S.G. Sec. 1B1.3(a)(2). This means 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 were part of the same course of conduct or ... common scheme or plan as the count of conviction." Id., commentary (backg'd); accord United States v. Restrepo, 903 F.2d 648, 653 (9th Cir.1990); United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989); United States v. White, 888 F.2d 490, 498 (7th Cir.1989); United States v. Taplette, 872 F.2d 101, 105 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989). We painstakingly explained the mechanical operation of this model in Blanco, 888 F.2d at 909-11, and therefore refrain from repastinating ground already well ploughed.

To bring uncharged conduct into play, the government must establish a sufficient nexus between the conduct and the offense of conviction. See United States v. Mocciola, 891 F.2d 13, 15 (1st Cir.1989); United States v. Fox, 889 F.2d 357, 360-61 (1st Cir.1989). The government's burden is to prove the nexus by a preponderance of the evidence. See Mocciola, 891 F.2d at 15; Blanco, 888 F.2d at 909. The rules of trial evidence do not apply; in weighing the facts the sentencing court may evaluate virtually any dependable information. See U.S.S.G. Sec. 6A1.3 (sentencing court may consider all pertinent information which has "sufficient indicia of reliability to support its probable accuracy"); see also United States v. Bradley, 917 F.2d 601, 605 (1st Cir.1990); Blanco, 808 F.2d at 908-09; Wright, 873 F.2d at 441.

On appeal, the sentencing court's finding that drugs other than those specified in the indictment were part of the same conduct/scheme/plan is entitled to considerable deference. See Diaz-Villafane, 874 F.2d at 48; Wright, 873 F.2d at 443-44; see also 18 U.S.C. Sec. 3742(d). Absent mistake of law, we review such conclusions only for clear error and will not disturb supported findings unless our scrutiny

Page 111

of the record convinces us that a serious mistake was made. See United States v. Gooden, 892 F.2d 725, 729 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2594, 110 L.Ed.2d 274 (1990); Mocciola, 891 F.2d at 16.

In terms of a drug case, relevance depends upon the existence and scope of a single course of conduct, scheme, or plan. There is no available compass by which a judge can chart such boundaries with scientific precision. Judges can, however, plot some landmarks. We start from the perspective that courts must be careful to hold the adjudicative balance steady and true, giving U.S.S.G. Sec. 1B1.3(a)(2) the scope which its letter commands while at the same time resisting prosecutorial efforts aimed at enlarging it. Not every drug transaction undertaken by every drug trafficker is necessarily linked in a meaningful sense. See White, 888 F.2d at 500 ("Offenses of the same kind, but...

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