USCA1 Opinion

August 11, 1992

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 92-1132

UNITED STATES OF AMERICA,

Appellee,
v.
AUGUSTO SERNA,
Defendant, Appellant.
____________________
ERRATA SHEET
The cover of the opinion of this Court
is amended as follows:
"[Hon.

Nicholas

Tsoucalas,

issued on August 4,

U.S. District Judge]" should

_____________________
"[Hon. Nicholas Tsoucalas,* U.S. Court of International Trade]".
_________________________________

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[NOT FOR PUBLICATION]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.
______________

____________________

John C. Doherty on brief for appellant.

_______________
Jeffrey R. Howard, United States Attorney, Peter E. Papps, Fi
_________________
______________
Assistant United States Attorney, and Robert J. Veiga, Assist
________________
United States Attorney, on brief for appellee.
____________________
____________________
______________________________
*The Honorable Nicholas Tsoucalas, Judge of
International Trade, sitting by designation.
Per Curiam.
__________
was charged

in a

the

Seven

one-count

appellant,

other

indictment with

individuals

including

apprehended

were

appellant's

Appellant pled guilty to

been

Court

In April 1991, appellant Augusto Serna

conspiring

distribute cocaine in violation of 21 U.S.C.

846.

U.S.

the charge.

and remains

841(a)(1) and

indicted

brother,

along

Carlos

His brother

fugitive.

to

with
Serna.

never has

Appellant

sentenced on January 13, 1992 to 120 months imprisonment.

was

1.
erred in
him

Appellant contends

calculating the

under

the United

testimony

the district

amount of cocaine

States

Sentencing

district court properly relied

the

that

presented at

court

attributable to
Guidelines.

The

on the Presentence Report and

the

sentencing

hearing.

See
___

United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992).

_____________
______

It

attributed to appellant between five and fifteen kilograms of

cocaine.
offense

Under

level of 32.

received

I, the

minimum

Combined with

Under

21

for

base

Appellant

acceptance

of

his criminal history category

provides for

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

sentence appellant received.

Appellant admits to
five

occasions,

total of

having sold, on

approximately

224

cocaine to

codefendant, Bradley Frost, during

introduced
looking

to Frost by a

for someone

Appellant indicated
He

supplied Frost

ounces
1987.

of

Appellant had been

co-worker who knew

from

whom he

that he knew
with the

-3-

that Frost was

could purchase
where to get

drug until

cocaine.

the cocaine.

appellant

left the

United States in January

1988 to return to Colombia.

stated

purchased

that

he

had

(approximately 11

all

of

kilograms) from appellant

his

Frost
cocaine

and his brother

Carlos.
At the
maintains

that when he left this country in January 1988, he

abandoned the
and

sentencing hearing and on appeal, appellant

conspiracy, had no further

had ceased to sell

that

he

had

cocaine altogether.

never sold

involvement with

cocaine

Frost.

never had made any

contact with Frost

to

He also stated

anyone

prior to

He specifically testified

arrangement with his brother to

his

that he
have him

continue to provide cocaine to Frost or to anyone else during

appellant's absence.
Lowell

in late

others were
brother.
to
had

When

May or

living

in

early June
the

appellant
of 1988,

apartment he

Appellant then moved to

returned
he found

shared

New Jersey.

with

He went

to
that
his
back

Lowell, however, when he found out that the Lowell police

raided his apartment.

police

station

to retrieve

When appellant went to the Lowell

his

passport,

which had

been

seized along with 700 grams of cocaine and $2,900 in cash, he

was arrested.
U.S.S.G.

1B1.3(a) controls

the manner in which a

court

calculates the

quantity

of drugs

attributable to

defendant for purposes of determining his or her base offense

level.

Even where a defendant was not personally involved in

-4-

all of the drug

conspiracy,
consider

transactions described in an
1B1.3(a)(1) requires

"all

acts and

omissions

indictment for

the sentencing
committed

court to

or aided

and

abetted by the defendant, or for which the defendant would be

otherwise accountable, that occurred during the commission of
the offense of conviction . . . ."
1B1.3

explains

that "[i]n

the

An application note to
case

of criminal

activity

undertaken in concert with others . . . the conduct for which

the defendant 'would be otherwise accountable'
conduct

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.

(n.1) (emphasis added).

We will not overturn

the district court's decision

to

include in its calculation all

unless it is

clearly erroneous.

United States v. Bianco,

_____________
______
The government

the drugs Frost purchased

See Garcia, 954 F.2d at 16;
___ ______

922 F.2d 910, 913 (1st

must prove by a preponderance of the evidence

facts sufficient to support

the sentence.

at 913; United States v. Blanco, 888 F.2d

_____________
______
1989).
adequate

Cir. 1991).

Bianco,
______

922 F.2d

907, 909 (1st Cir.

Under this standard, we find that the record contains

support

for

the

court's

finding

that

reasonably foreseeable that appellant's role as

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

conspiracy there was no

Massachusetts

on

the argument
during most

way he could have known

of

that
the

that Carlos

was supplying

Frost

Presentence Report
at

with

cocaine.

appellant

evidence

and the evidence presented

the sentencing hearing,

appellant had

The

however, was to

told Frost that

was gone.

support this

the

by government
the effect that

Carlos would take

To

in

over while

contention,

the

government pointed to grand jury and other testimony provided

by

Frost's

stepfather,

Alexander, he and
with appellant
country.
to

Frost had

and Carlos

Alexander.

met on at

Carlos would

return with the cocaine.

the apartment

least six

to

occasions
to this

would hand money over

then leave

the

apartment and

Indeed, Carlos continued to live in

after appellant left for Colombia and when the

raided

premises.

According

after appellant's return

_____

Alexander stated that Frost

appellant.

police

James

the

apartment

Finally,

there was

they
no

found

cocaine

link between

on

the

Frost

and

that

the

Carlos other than appellant.

Appellant
government
appellant's
sentencing

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,
______________

1990), cert. denied,

____________

Presentence Report

111 S.Ct.

provided a sufficient

the district court could infer

foreseeable that
cocaine.

922
2039

basis upon

that it was reasonably

Carlos would continue to

supply Frost with

See id. at 36-37; Garcia, 954 F.2d at 17.

___ ___
______

there is more than

the

never been

Alexander's testimony and the information contained

in the
which

that has

one plausible view of the

"[W]here

circumstances,

sentencing court's choice among supportable alternatives

cannot be

clearly erroneous."

United States
_____________

v. Ruiz,
____

905

F.2d 499, 508 (1st Cir. 1990).

2.
3B1.2

he

between

Appellant

should

It points

responsible
minimum of 10
this

minimum

for

downward

U.S.S.G.

adjustment

The government argues that the

out that
over five

the

becomes

the

finding that

kilograms

years (which is

regardless of any
of

received a

that under

of

2 and 4 levels as a "minimal" or "minor" participant

in the conspiracy.
moot.

have

next claims

issue is

appellant is

triggers a

statutory

what appellant recieved)

minimum

guideline

reduction in the offense

minimal or minor participation.

U.S.S.G.

and

sentence

level on account
5G1.1(b).

We

agree with the government but

refusal to

note that the district court's

declare appellant a minor

or minimal participant

would not in any event constitute error.

-7-

We review a district
decision
F.2d

only for clear error.

817, 820

Sierra,
______

court's "role in the offense"

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).

proving his entitlement

3B1.2.

to a

Rosado-Sierra, 938 F.2d

_____________

at 1.
The

commentary

to

3B1.2 makes

plain

that

defendant is not entitled to a downward adjustment unless the

defendant is
participant."

"substantially less culpable

Comment. (backg'd).

downward adjustment
infrequently."

for a

U.S.S.G.

than the

"It is intended that the

minimal participant will

3B1.2,

average

comment.

be used

(n.2).

As

examples of

minimal actors, this

note cites one

whose only

role is to off-load a single shipment of marijuana or one who

was recruited only as a courier in a single transaction.
comment.

n.1.
Here, appellant

cocaine, hardly a

admitted to

minor role

result, we cannot conclude

in

being

in any drug

operation.

on

which

results, see Brum,

____

cocaine

conducted); United States

_____________

of

As

For cases in which we

948 F.2d at

(when police conducted search, defendant found

table

a supplier
________

that the district court's finding

this regard was clearly erroneous.

have reached similar

to

Id.
___

packaging

v. DiIorio, 948
_______

820-21

standing next

operation
F.2d 1, 5-6

being
(1st

-8-

Cir. 1991) (defendant had knowledge

of codefendants' ongoing

plans

money

to

sell

cocaine,

received

for

cocaine

and

participated in setting up meeting place); Rosado-Sierra, 938

_____________
F.2d at 2(defendant worked asa "broker" forseller ofcocaine).

3.

Appellant's

final argument is that

receive a fair sentencing hearing.

in

which he

claims that

evinced a predisposition
had prejudged

He lists

the sentencing
to defend

appellant's guilt

the transcript and

context of the
allowed
also

is clear

and made findings

attorney

listened to

already
prior to

Having carefully
excerpts in the

it is plain

present evidence and

that he

was biased,

the government,

read the eight

entire hearing,

appellant to

eight instances

judge

hearing appellant's evidence and testimony.

reviewed

he did not

that the

judge

to testify.

what appellant

had to say before imposing sentence.

It

and his

That he found

appellant's version of the facts not credible does not render

the

hearing biased

or

unfair.

See
___

18 U.S.C.

("court of appeals shall

give due regard to the

of

to

the

district

court

judge the

3742(e)
opportunity

credibility

of

witnesses").
The judgment of the district court is affirmed.
________

-9-

the