U.S. v. Vazzano

• Decision Date: 22 June 1990
• Docket Number: No. 460,D,460
• Citation: 906 F.2d 879
• Parties: UNITED STATES of America, Appellee, v. Richard VAZZANO, Defendant-Appellant. ocket 89-1331.
• Court: U.S. Court of Appeals — Second Circuit

Page 879

906 F.2d 879

UNITED STATES of America, Appellee, v. Richard VAZZANO, Defendant-Appellant.

No. 460, Docket 89-1331.

United States Court of Appeals Second Circuit.

Argued Dec. 13, 1989.

Decided June 22, 1990.

Richard A. Reeve, Asst. Federal Public Defender, New Haven, Conn. for defendant-appellant.

John H. Durham, Asst. U.S. Atty., New Haven, Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., Robert J. Devlin, Jr., Attorney, U.S. Dept. of Justice, New Haven, Conn., Michael A. Schwartz, Law Intern, of counsel), for appellee.

Before VAN GRAAFEILAND, PIERCE and MINER, Circuit Judges.

PIERCE, Senior Circuit Judge:

Richard Vazzano appeals from a judgment of the United States District Court for the District of Connecticut (Eginton, Judge ) convicting him, after a guilty plea, of one count of distribution of cocaine while within 1,000 feet of a school. 21 U.S.C. Secs. 841(a)(1), 845a(a). Vazzano was sentenced, inter alia, to 36 months imprisonment and is now serving his sentence.

On appeal, Vazzano contends that the district court erred in considering quantities of cocaine and transactions not involved in the events at issue in calculating his base offense level.

BACKGROUND

At a meeting on October 25, 1988, Vazzano told one Bill Lepore, an informant working for the FBI, that he could supply all the cocaine Lepore wanted. When asked about the quality of the cocaine, Vazzano told Lepore that he sold "A" and "B" cocaine, which were of high quality, and that his clients were making substantial profits reselling cocaine that they bought from him.

Vazzano and Lepore met again on October 28, 1988. At this meeting, Vazzano showed Lepore a package and told him that it contained grade "C" cocaine. Vazzano told Lepore that while this cocaine was of low quality, it was "money making stuff" and that he had made approximately $6,000 that week selling it. When Lepore asked Vazzano for a sample of the cocaine, Vazzano offered to sell him an ounce for $500. Lepore responded that he did not have that much money with him, whereupon Vazzano informed him that the package contained three ounces. Vazzano declined to give Lepore either one ounce or the whole package, on credit, claiming that he was unable to weigh out an ounce and that he had a customer who was presently able to pay for the entire quantity. During the course of this conversation, Vazzano told Lepore that he had just sold nine ounces of the same quality cocaine to a customer in New Haven and that he was selling the "C" quality cocaine for $11,000 per kilogram. Vazzano provided a sample from the package for Lepore to give to a potential customer. In relevant part, this conversation occurred as follows:

Lepore: [Y]ou got a sample for me?

Vazzano: I'm telling you. How much ... you wanna buy an ounce? Buy an ounce for five hundred bucks.

Lepore: I don't have that. If I knew that, you know, geez unless you give me.

Vazzano: I got three ounces.

Lepore: Well well why don't you do this ... give me an ounce, right?

Vazzano: I don't, how the f--- am I gonna tell what an ounce is? It's all in one bag.

Lepore: What do you got, three ounces?

* * * * * *

Vazzano: I just sold nine to a guy [in New Haven].

Lepore: Well what, what do you got in there?

Vazzano: This is three.

Lepore: Three ounces. Now what's, what's he want for, ah what do you want for an ounce?

* * * * * *

Vazzano: ... Five hundred dollars an ounce.

Lepore: Alright, why don't I, why don't I take this. Alright? I'll see him tonight.

Vazzano: I got a guy right now who'll buy this from me, right now, for cash money. So I'd rather just give you [a] hunk of it. A little chunk.

On November 2, 1988, Vazzano told Lepore that he was about to receive a substantial shipment of higher quality cocaine. Vazzano agreed to sell Lepore an ounce each of the "A" and "B" qualities the following day for a total of $1,550. Lepore indicated that he would pass these samples on to a customer who was interested in setting up a kilogram level deal.

The two-ounce sale never occurred and, on November 14, 1988, Vazzano met Lepore and gave him a sample of the "B" quality cocaine which he described as being three times as good as the "C" quality. Vazzano offered to sell two kilograms of this quality cocaine for a total of $27,000. Vazzano assured Lepore that this was "very cheap" and told him that the "A" quality--which he described as being of the same purity but "cleaner" and "whiter" than the "B" quality--was available for $17,000 to $18,000 per kilogram. During this conversation, Lepore mentioned that he had previously been "ripped off" and expressed concern that Vazzano's source might be untrustworthy. Vazzano told Lepore not to worry.

On November 15, 1988, Vazzano gave Lepore a sample of the "A" quality cocaine.

Chemical analysis revealed that the cocaine which Vazzano gave to Lepore on October 28, 1988 weighed 2.07 grams and was 45% pure; that the sample distributed on November 14, 1988 weighed 3.35 grams and was 67% pure; and that the sample distributed on November 15, 1988 weighed 2.12 grams and was 98% pure.

During a meeting on November 17, 1988, Vazzano told Lepore that he had been warned that Lepore was "wired." Five days later, Vazzano also mentioned two people who had been arrested and expressed concern that someone was "scooping [his] customers off the street." In light of these conversations, the FBI became concerned for Lepore's safety, and Vazzano was arrested on November 29, 1988. In a three-count indictment returned on December 20, 1988, Vazzano was charged with possession with the intent to distribute, and distribution of, cocaine on October 28, 1988, 21 U.S.C. Sec. 841(a)(1), and with possession with the intent to distribute, and distribution of, cocaine while within 1,000 feet of a school on November 14 and 15, 1988, 21 U.S.C. Secs. 841(a)(1), 845a(a).

On March 31, 1989, Vazzano pled guilty to the distribution charged in count two of the indictment. In its presentence report, the probation department calculated Vazzano's base offense level at 22. This figure reflected the three samples which Vazzano had distributed to Lepore and, crediting Vazzano's representations at the October 28, 1988 meeting, the nine ounces which Vazzano "just sold ... to a guy [in New Haven]" and the three ounces which Vazzano had in his possession at that meeting. Acknowledging that Vazzano "was not observed in possession of the nine ounces of cocaine he said he had sold," the probation department suggested that either a downward departure or a recomputation of the base offense level might be warranted.

Vazzano objected to the inclusion of both the nine-ounce distribution which he had discussed with Lepore and the three ounces he had claimed he possessed on October 28, 1988, and contended that he had attempted to "rip-off" Lepore by getting him to provide money in advance for nonexistent drugs. Vazzano asserted that his statements were unreliable "boasts" made in order to convince Lepore that he was capable of producing large quantities of cocaine. In addition to challenging the sufficiency of the government's proof that he actually distributed the nine ounces and possessed the three ounces, Vazzano also asserted that, in any event, the nine-ounce distribution was not "relevant" to his distributions to Lepore.

Vazzano argued that his base offense level should only reflect the quantities that he actually distributed to Lepore; this would result in a base offense level of 13. See United States Sentencing Guidelines ("Guidelines") Sec. 2D1.3(a)(2)(B) (Jan.1988). Alternatively, conceding that the court could consider the cocaine in his possession on October 28, 1988, Vazzano argued that the package that he showed to Lepore contained no more than one ounce of the drug. When aggregated with the quantities distributed to Lepore, this would result in a base offense level of 14.

At the sentencing hearing, Judge Eginton rejected the government's argument that, in light of the negotiations involving two kilograms of cocaine, the appropriate base offense level was 28. See id. Sec. 2D1.4, applic. note 1 (Jan.1988). Rather, relying upon Vazzano's statements to Lepore and his assessment that Vazzano was not a "low level" dealer, Judge Eginton found that the appropriate base offense level was 22.

After a two-point reduction for acceptance of responsibility, the applicable guidelines range for incarceration was 33-41 months. Judge Eginton imposed a term of imprisonment of 36 months, six years of supervised release and a $50 special assessment. When defense counsel urged him to clarify his findings, Judge Eginton stated that the government had satisfied its burden of establishing the nine-ounce distribution and the three-ounce possession by a preponderance of the evidence. He explained that:

even though I could, I think with some comfort go all the way with the government on the twenty-eight offense level, I'm a little more comfortable going with the twenty-two because I think it's more of a transactional situation. It's the one episode that seems to me to come very closely together and I certainly feel that it's an important part of the government's proof and this I think is the issue that you get right down to ... [that is] to what extent can you rely on what the defendant tells you or what the defendant says to the informant.... The over[all] common sense thing is ... I cannot picture this particular individual with his lifestyle ... as falling within the category ... of a really very low level nickle and dime distributor.

The present appeal followed.

DISCUSSION

On appeal, Vazzano asserts that the district judge erred in including the "nine-ounce distribution" and the "three-ounce possession" in calculating his base offense level. Vazzano argues that there was insufficient evidence to establish that either the nine-ounce distribution or the three-ounce possession occurred and that the nine-ounce distribution did not...