U.S. v. Talladino

• Decision Date: 13 September 1994
• Docket Number: No. 94-1122,94-1122
• Citation: 38 F.3d 1255
• Parties: UNITED STATES of America, Appellee, v. Anthony L. TALLADINO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1255

38 F.3d 1255

UNITED STATES of America, Appellee, v. Anthony L. TALLADINO, Defendant, Appellant.

No. 94-1122.

United States Court of Appeals, First Circuit.

Heard Sept. 13, 1994.

Decided Nov. 14, 1994.

Susan K. Howards, with whom Launie and Howards P.A., Boston, MA, was on brief, for appellant.

Dina Michael Chaitowitz, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

This appeal constitutes one more link in the lengthening chain of sentencing appeals that binds the federal courts of appeals ever more tightly to the sentencing process. In this instance, defendant-appellant Anthony L. Talladino challenges the district court's determination of the guideline sentencing range (GSR) in respect to: (1) the court's enhancement of his offense level based on his aggravating role in the offense; and (2) the court's handling of the delicate interface between obstruction of justice and acceptance of responsibility. We find the first assignment of error to be unavailing. We detect some merit, however, in the second assigned error. Consequently, we vacate appellant's sentence and remand for resentencing.

I. BACKGROUND

Because the underlying conviction results from a guilty plea rather than a trial, we draw the facts from the uncontested portions of the Presentence Investigation Report (PSI Report) and the transcript of the sentencing hearing. See United States v. Garcia, 954 F.2d 12, 14 (1st Cir.1992); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

Talladino, a chemist by trade, attempted to parlay his technological expertise into ill-gotten gains by illicitly manufacturing and distributing a kaleidoscopic array of drugs, including methamphetamine, psilocybin, PHP (1-(1-phenylcyclohexyl)-pyrrolidine), and MDMA (methylenedioxymethamphetamine). ¹ Talladino plied this nefarious trade in concert with several other persons, among them Michael Hanley, Anthony Miller, and Scott Dailey.

The venture apparently took wing when, sometime in 1989, Talladino told Hanley that he (Talladino) had the skills needed to manufacture illegal drugs. Hanley expressed interest and the two men set up shop. In the fall of 1990, Talladino began manufacturing PHP at locations in Boston and Dorchester. He explained to Hanley that he had selected PHP as the product of choice because, as an analogue of PCP, it was "non-classified" under Massachusetts law and, thus, the producers "would avoid any sort of legal ramifications." Within a few months, the principals had recruited Miller and Dale McDonnell (an acquaintance of Talladino's) as retailers for the manufactured PHP.

For a spell, Talladino's rodomontade seemed to be congruent with the relevant realities. In April of 1991, a local police department caught wind of a suspected PCP distribution ring. The police arrested Talladino and Miller. Once apprehended, Miller, who believed he had been trafficking in PCP, told the officers that McDonnell was peddling PCP "for Talladino." The Commonwealth of Massachusetts charged Talladino with distributing PCP, but, when chemical tests proved the product to be PHP, the authorities dropped the charges.

Talladino's luck began to sour in late 1991, when the federal Drug Enforcement Administration (DEA) launched an investigation. At that juncture, Talladino was using Hanley's residence in Quincy, Massachusetts, as a site for manufacturing PHP. A chemical company informed the DEA that Hanley, employing a pseudonym, had ordered a chemical frequently used to manufacture PCP. The DEA orchestrated a surveillance and Hanley unwittingly led the lawmen to his lodgings. Early the next morning, a Quincy police officer stopped Talladino's car and found inside a bottle containing approximately 50.50 grams of a substance that the officer thought was PCP (but which was in actuality PHP).

The police arrested Talladino for possessing PCP with intent to distribute. Perhaps emboldened by his previous triumphant encounter with the law, Talladino freely admitted that he was manufacturing PHP. The state once again dismissed the charges against him, but the DEA's interest did not wane.

Meanwhile, Talladino began to expand his horizons. In 1992, he proposed to Dailey, a co-worker, that they use the latter's apartment as a site for producing phenylacetic acid (a precursor chemical to methamphetamine). The men tried, but the reaction failed. The entrepreneurs shelved the plan to manufacture methamphetamine until February of 1993, when Talladino noticed that Dailey's laboratory had received a shipment of phenylacetic acid. Talladino told Dailey that it would be easy to manufacture methamphetamine with pure phenylacetic acid. At Talladino's instigation, Dailey pilfered 300 grams of phenylacetic acid from his employer. Talladino then installed a production facility at Dailey's apartment. By June, the pair had succeeded in manufacturing roughly 140 grams of liquid methamphetamine. Dailey described himself as Talladino's "lab assistant" for purposes of this endeavor.

Apparently not satisfied with PHP and methamphetamine, Talladino continued to enlarge his product line. Presumably because his paramour knew an individual who stood ready to buy large quantities of the drug known as Ecstasy, Talladino next focused his considerable energies in that direction. Talladino obtained a quantity of safrole (a precursor chemical), and attempted to manufacture the drug.

During the same time frame, Talladino and Hanley decided to produce psilocybin, a hallucinogen. Talladino ordered the seeds, took petri dishes and other necessary paraphernalia from his place of legitimate employment, and ordered Hanley to procure lime and peat moss. The attempt to produce psilocybin was well on the way to fruition when a federal grand jury indicted Talladino. ²

DEA agents arrested Talladino and Hanley on June 3, 1993. Both men were detained. Immediately prior to Hanley's release on bail, Talladino instructed him to destroy all evidence of drug manufacture at a location the two men had used in Charlestown, Massachusetts. Hanley followed Talladino's instructions. Through an intermediary, Talladino also managed to alert Dailey to the dire nature of the situation and suggest that he take cautionary measures. As a result of the warning call, Dailey disposed of the methamphetamine and other chemicals. ³

On September 17, 1993, Talladino pled guilty to the ten counts of the indictment in which he was named. The district court convened a disposition hearing on January 20, 1994. ⁴ Dailey testified. The court also inspected transcripts of grand jury testimony, reviewed the PSI Report, and mulled Talladino's objections thereto. Two of those objections lie at the epicenter of this appeal: appellant's lament that he should not be subjected to a four-level enhancement for playing an aggravating role in the offense; and his contention that he should receive a three-level credit for acceptance of responsibility (as opposed to the two-level credit recommended in the PSI Report).

The district court overruled appellant's role-in-the-offense and acceptance-of-responsibility objections. It then calculated the GSR at 135-168 months (offense level 33/criminal history category I) and imposed an incarcerative sentence at the bottom of the range. This appeal ensued.

II. ROLE IN THE OFFENSE

Appellant asseverates that the lower court erred in enhancing his base offense level for his role in the commission of the offense. We start our analysis by inspecting the legal framework on which this asseveration rests, and then proceed to examine the merits.

A

The federal sentencing guidelines provide two different tiers of upward adjustments for defendants who are in the higher echelons of criminal enterprises. Generally speaking, a "manager" or "supervisor" is treated less kindly than a journeyman, but more kindly than an "organizer" or "leader." Compare U.S.S.G. Sec. 3B1.1(b) with U.S.S.G. Sec. 3B1.1(a). In the latter case, the guidelines call for an increase of four levels "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive...." Id.

It is evident from this language that the guideline puts in place two preconditions to a four-level enhancement. One is enterprise-specific; the court must find that the criminal activity involved five or more participants, or was otherwise extensive. The second is offender-specific; the court must find that a particular defendant acted as an organizer or leader of the activity. We have consistently read the guideline in this manner. See, e.g., United States v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir.1993); Dietz, 950 F.2d at 52; United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.1990).

The commentary to the guidelines furnishes a nonexhaustive list of factors to aid courts in delineating the difference between the roles of organizer/leader and manager/supervisor:

the exercise of decision making authority, the nature of participation in the commission of the offense; the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

U.S.S.G. Sec. 3B1.1, comment. (n. 4). These seven factors, while useful as guideposts, do not possess talismanic significance. "There need not be evidence of every factor before a defendant is found to be a leader or organizer." United States v. Preakos, 907 F.2d 7, 9 (1st Cir.1990) (per curiam) (citation and internal quotation marks omitted). Moreover, because role-in-the-offense determinations are inherently fact-specific, the district court's views demand "considerable respect." United States v. Ocasio, 914 F.2d 330,...