Académique Documents
Professionnel Documents
Culture Documents
No. 92-1132
Nicholas
Tsoucalas,
issued on August 4,
19
_________________________________
*The Honorable Nicholas Tsoucalas, Judge of the U.S.
International Trade, sitting by designation.August 4, 1992
[NOT FOR PUBLICATION]
Court
____________________
No. 92-1132
UNITED STATES OF AMERICA,
Appellee,
v.
AUGUSTO SERNA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Nicholas Tsoucalas,* U.S. Court of International Trade]
_________________________________
____________________
Before
Selya, Cyr and Boudin, Circuit Judges.
______________
____________________
in a
the
Seven
one-count
appellant,
other
indictment with
individuals
including
apprehended
were
appellant's
Court
U.S.
the charge.
and remains
841(a)(1) and
indicted
brother,
along
Carlos
His brother
fugitive.
to
with
Serna.
never has
Appellant
was
1.
erred in
him
Appellant contends
calculating the
under
the United
testimony
the district
amount of cocaine
States
Sentencing
that
presented at
court
attributable to
Guidelines.
The
sentencing
hearing.
See
___
It
Under
level of 32.
received
I, the
minimum
Combined with
Under
21
for
base
Appellant
acceptance
of
U.S.C.
mandatory term of
resulted in
2D1.1(c)(6).
decrease
sentencing table
imprisonment.
this
See U.S.S.G.
___
two-level
responsibility.
of
the Guidelines,
97 to
121 months
841(b)(1)(A)(ii),
imprisonment is
10 years
the
-- the
occasions,
total of
having sold, on
approximately
224
cocaine to
to Frost by a
for someone
Appellant indicated
He
supplied Frost
ounces
1987.
of
from
whom he
that he knew
with the
-3-
could purchase
where to get
drug until
cocaine.
the cocaine.
appellant
left the
stated
purchased
that
he
had
(approximately 11
all
of
his
Frost
cocaine
Carlos.
At the
maintains
abandoned the
and
that
he
had
cocaine altogether.
never sold
involvement with
cocaine
Frost.
to
He also stated
anyone
prior to
He specifically testified
his
that he
have him
in late
others were
brother.
to
had
When
May or
living
in
early June
the
appellant
of 1988,
apartment he
returned
he found
shared
New Jersey.
with
He went
to
that
his
back
police
station
to retrieve
passport,
which had
been
1B1.3(a) controls
court
calculates the
quantity
of drugs
attributable to
-4-
transactions described in an
1B1.3(a)(1) requires
"all
acts and
omissions
indictment for
the sentencing
committed
court to
or aided
and
explains
that "[i]n
the
An application note to
case
of criminal
activity
of
others in
jointly-undertaken
foreseeable by
___________
furtherance of
criminal
activity
the defendant."
also includes
the execution
that
U.S.S.G.
was
of the
reasonably
__________
1B1.3, comment.
to
unless it is
clearly erroneous.
the sentence.
Cir. 1991).
Bianco,
______
922 F.2d
for
the
court's
finding
that
it
was
the supplier
-5-
of
Frost's
cocaine
would be
continued
by
Carlos in
his
absence.
Appellant
because
he was
not
relies primarily
in
Massachusetts
on
the argument
during most
of
that
the
that Carlos
was supplying
Frost
Presentence Report
at
with
cocaine.
appellant
evidence
appellant had
The
however, was to
was gone.
support this
the
by government
the effect that
To
in
over while
contention,
the
Frost's
stepfather,
Alexander, he and
with appellant
country.
to
Frost had
and Carlos
Alexander.
met on at
Carlos would
least six
to
occasions
to this
then leave
the
apartment and
raided
premises.
According
appellant.
police
James
the
apartment
Finally,
there was
they
no
found
cocaine
link between
on
the
Frost
and
that
the
did not
makes
much
have Alexander,
sentencing hearing,
court
of
is free
to
-6-
the
who was
testify.
rely
fact
present during
However,
upon outside
"[t]he
evidence,
including
hearsay evidence
cross-examination."
F.2d 33, 36
(1991).
United States v.
______________
(1st Cir.
subject to
Zuleta-Alvarez,
______________
Presentence Report
111 S.Ct.
provided a sufficient
foreseeable that
cocaine.
922
2039
basis upon
never been
in the
which
that has
"[W]here
circumstances,
cannot be
clearly erroneous."
United States
_____________
v. Ruiz,
____
905
he
between
Appellant
should
It points
responsible
minimum of 10
this
minimum
for
downward
U.S.S.G.
adjustment
the
becomes
the
finding that
kilograms
years (which is
regardless of any
of
received a
that under
of
in the conspiracy.
moot.
have
next claims
issue is
appellant is
triggers a
statutory
guideline
U.S.S.G.
and
sentence
level on account
5G1.1(b).
We
or minimal participant
-7-
We review a district
decision
F.2d
817, 820
Sierra,
______
938
(1st
F.2d
Appellant bears
Cir. 1991);
1,
1-2
under
v. Brum, 948
____
United States v.
______________
(1st
the burden of
downward adjustment
United States
_____________
Cir.
1991)
Rosado_______
(per curiam).
3B1.2.
to a
at 1.
The
commentary
to
3B1.2 makes
plain
that
downward adjustment
infrequently."
for a
U.S.S.G.
than the
average
comment.
be used
(n.2).
As
examples of
whose only
n.1.
Here, appellant
cocaine, hardly a
admitted to
minor role
being
in any drug
operation.
on
which
cocaine
of
As
a supplier
________
to
Id.
___
packaging
v. DiIorio, 948
_______
820-21
standing next
operation
F.2d 1, 5-6
being
(1st
-8-
of codefendants' ongoing
plans
money
to
sell
cocaine,
received
for
cocaine
and
3.
Appellant's
which he
claims that
evinced a predisposition
had prejudged
He lists
the sentencing
to defend
appellant's guilt
context of the
allowed
also
is clear
attorney
listened to
already
prior to
Having carefully
excerpts in the
it is plain
that he
was biased,
the government,
entire hearing,
appellant to
eight instances
judge
he did not
that the
judge
to testify.
what appellant
It
and his
That he found
hearing biased
or
unfair.
See
___
18 U.S.C.
of
to
the
district
court
judge the
3742(e)
opportunity
credibility
of
witnesses").
The judgment of the district court is affirmed.
________
-9-
the