USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1306
UNITED STATES,
Appellee,
v.
PEDRO ARISMENDY OLIVIER-DIAZ
a/k/a ARTY,
Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Barbadoro,* District Judge.
______________
____________________

George L. Garfinkle with whom Jeffrey A. Denner and Perki

_____________________
__________________
_____
Smith & Cohen were on brief for appellant.
_____________
Margaret D. McGaughey, Assistant United States Attorney, w
_______________________
whom Jay P. McCloskey, United States Attorney, and Jonathan To
__________________
____________
Assistant United States Attorney, were on brief for appellee.
____________________
December 22, 1993
____________________
_____________________
*Of the District of New Hampshire, sitting by designation.

BARBADORO, District Judge.

_______________

Defendant Pedro

Arismendy Olivier-Diaz appeals from the sentence he received

after
with

he was found guilty

intent to

distribution of

of conspiracy to possess cocaine

distribute
cocaine.

and
See
___

(b)(1)(c), 846, and 18 U.S.C.

two grounds.

aiding
21 U.S.C.

and

abetting

the

841(a)(1), 841

2. Arismendy challenges his

sentence

on

First,

he

contends that

district

court erred in calculating his offense level under

the federal sentencing guidelines when it (1) relied on

the

the

testimony of an allegedly untrustworthy witness to determine

the amount

of cocaine involved

concluded on the

five or more participants.

time on appeal that

prior

conspiracy and

(2)

basis of inadequate evidence that he acted

as an organizer or leader

when it

in the

criminal history

that

involving

Second, he claims for the first

the court engaged in

increased his
convictions

of a criminal activity

allegedly

"double counting"
category by

resulted

from

conspiracy on which his federal sentence was based.

no reversible error,

using

we affirm Arismendy's sentence

the

Finding
in all

respects.

I.
BACKGROUND
A.

The Offenses
____________
During

the

fall

Verona, a small-time drug dealer,

of 1990,

Arismendy

met

Ra

and offered to sell him cocain

2

Verona initially declined.

However, he later

contacted Arismen

on two occasions and purchased 125 grams of cocaine on credit.

or

three

months

unidentified

woman

Massachusetts
and

the

to

Arismendy

make

courier

delivered

the

trips

Verona

and

New

York

from

Once in Massachusetts, Vero

cocaine

Verona knew only

was paid $500

persuaded

several

to transport cocaine.

Arismendy's whom
Verona

later,

to

confederate

as "Giovanni."

and supplied

with 125

For

each tri

grams of

cocaine

credit.
Verona

used

the

cocaine

he

obtained

Arismendy to supply three of his customers in Maine, Peter Lauzie

Vicki

Hall and

operation

Pauline Rivard.

on credit,

significant problem.
$16,000

for

Arismendy.

Because

however, debt

cocaine,

$4,000

Arismendy's solution

at

Pelletier.

Argentina Dalmassi,

Rivard's

home and

When Pelletier

home, Arismendy and the three

cash and

quickly became

some jewelry.

that he take possession

of

which

to this problem

with him to Maine to collect the debt.

arrived

collection

the cocai

By May 1991, Rivard owed Verona approximate

"fronted"

Verona's paramour,

Verona ran

and three

was

owed

was to

recru

men, to

trav

On June 2, 1991, the gro

confronted

her

informed them that

boyfriend, Robe
Rivard was

not

men ransacked the house, taking so

As they were leaving,

Arismendy propos

of Pelletier's boat and provide

Pelleti

with cocaine to sell until he paid back what Rivard owed.

Later
nearby flower

shop and

that day, Arismendy encountered Rivard a

demanded payment.
3

Although

she believ

that

she

only

owed

money

Arismendy the next day.

Rivard

in the

however,
charges

of

to leave.

The

this collection

released on bail later

learned

demanded immediate

ordered Dalmassi
to

Rivard

promised

Moments later, Dalmassi

face and

related

to Verona,

that day.

their release,

went

Arismend

group was
but

to

arrested

they

Fearing for her

Rivard

appeared, slapp

payment.

attempt

to

were a

safety when s

the authorities

offered to cooperate.
In

July 1991,

began distributing cocaine

Arismendy, unbeknownst

to Vero

directly to Lauzier and Hall.

For t

next several months, Arismendy supplied them with two to ten ounc
of

cocaine

contacted

every

other

Lauzier and

week.

Hall and

In

early

asked

October,

to purchase

custom

cocaine.

response, Lauzier and Hall went to a trailer owned by their frien

Elwin Baker, weighed the cocaine in Arismendy's presence, and dro

to a

local bar to make the sale.

however, because their

officer of the
(MBIDE).

sent Baker

customer sold the cocaine

to an undercov

Maine Bureau of Intergovernmental

Drug Enforceme

Arismendy, who

became concerned

They were immediately arreste

was waiting to be

after Lauzier and

out to search

for them.

they had been arrested, he had Baker

paid for the cocain

Hall failed to return,

When Arismendy

and

learned th

drive him back to his home

New York.

Arismendy later placed

Hall's business and sold him as much

Baker in charge

of Lauzier a

as eight ounces of cocaine

a time.

Arismendy

was arrested

by the

1992 and was subsequently convicted of the present

MBIDE

in Janu

federal charg

in the United States District Court for the District of Maine.

B.

The Sentence
____________
The court

26, 1993.

held a sentencing

hearing on

Verona was called as a witness at the

Febru

hearing and cro

examined by the defense in an effort to attack his trial testimon

During this examination, Verona testified that he had made at lea

four

trips

from

kilograms

of

remember

well,

New York

cocaine on
but

to
the

think

Massachusetts,
first

trip,

the other

transporting sev

and added,

[trips]

were

"I

don

about

kilograms each."

This testimony differed slightly

from his tri

testimony where he had claimed that he had made "five or six trip

and had delivered seven kilograms of cocaine on the first two tri
and ten kilograms on each remaining trip.
In

determining Arismendy's

the district court first grouped

had

been convicted,

offense level

at

involved approximately
2D1.1(c)(5)

it

3D1.2(d), and
found that

36 kilograms

set his

Arismendy's

of cocaine.

See
___

Cocaine").

The court

organizer or leader

condu

U.S.S.G.

then

least 15 KG but less than 50

found

that

Arismendy had

of a criminal activity involving

3B1.1(a).
as

partial

KG

been

five or mo

participants and added four levels to his base offense

firearms

ba

(Drug Quantity Table) (establishing base offense lev

34 for conduct involving "[a]t

U.S.S.G.

lev

the two counts on which Arismen

see U.S.S.G.
___

34 because

total offense

level.

S
_

Finally, because Arismendy had received

payment

for

cocaine,

the

additional two-level increase to his offense level.

court

made

See U.S.S.G.
___

2D1.1(b)(1).

These calculations resulted

in a total offense lev

of 40.
The
history category

II

court

then

placed

by assigning

Arismendy

one criminal

in

crimi

history point

prior State of Maine convictions for theft and criminal threateni

and a second

point to

a prior

State of New

operating a motor vehicle while

4A1.1(c).

Accordingly,

impaired by alcohol.
the

guideline sentencing

range to be

sentenced

to

Arismendy

365

York conviction

court

months

supervised release and a $5,000 fine.

in

See U.S.S.
___

determined

324-405 months.
prison,

Arismendy

The

court th

five

years

This appeal followed.

II.
DISCUSSION
A.

The Offense Level

_________________
Arismendy

challenges

court's offense level computation.

that we

must both

'accept the

two steps

in

the

distr

We consider his claims "mindf

findings of

fact of the

distri

court unless they are clearly erroneous' and 'give due deference
the district court's application of the guidelines to
United States v. Ruiz, 905 F.2d 499,
_____________
____
18 U.S.C.
3742(e)).
1.

Cocaine Quantity
________________

the facts.

507 (1st Cir. 1990)

(quoti

Arismendy's first argument is that the

court erroneously relied

on Verona's testimony in

sentenc

determining t

amount of cocaine involved in the conspiracy because Verona offer

uncorroborated

and self-contradictory

receive favorable treatment

testimony in

from the government.

an effort
We reject

th

contention.
Arismendy's counsel forthrightly conceded at
argument that if Verona's testimony were
collapse.

this concession,

district court did not err in its drug quantity determination.

easily conclude

shows unequivocally that after considering the evidence a

rejecting the same arguments now

raised on appeal, the court fou

Verona's testimony to be credible.

such

we

believed, his claim wou

that

record

Given

assessments

are

exclusively

sentencing court.

We

find no such

In the absence
within

the

error here.

of clear erro
province
Cf. id.
___ ___

of

at 5

("where there is more than one plausible view of the circumstance

the sentencing court's choice among supportable alternatives cann

be clearly erroneous").

2.

Leadership Role
_______________
Arismendy

committed clear error

levels because
See
___

next

that

the

3B1.1(a).

leadership role in

He contends

that the

improper because the evidence established only that

in

selling

cocaine

district

when it increased his offense

of his alleged

U.S.S.G.

claims

to multiple

"independent

co

level by fo

the conspirac

enhancement w

he acted alo

customers."

disagree.
Two

conditions

must be

met before

role enhancement is in order under U.S.S.G.

a leaders

3B1.1(a).

See Unit
___ ____

States v.
______

Preakos, 907
_______

First, the sentencing

"an

organizer or

activity must

F.2d 7,

otherwise extensive."

1990) (per

court must find that the

leader of

have

9 (1st Cir.

or

See
United States
___________________

determining

Second,

more participants
v. McDowell,
________

1004, 1011 (1st Cir. 1990) (quoting U.S.S.G.

In

defendant acted

criminal activity."

"involved five

whether

curiam

or

defendant

918 F.

3B1.1(a)).
a

had

leadership role

in criminal

activity, the

commentary to

secti

3B1.1 instructs courts to consider such factors as decision

authority, recruitment

of accomplices, degree of

planning the offense, degree of

right to

a larger share

of the fruits

of the crime.

(n.4); see also Preakos,

___ ____ _______

such

the offense"

district

in

court's views

participation

control over others, and a claim

3B1.1, comment.
"role

maki

907 F.2d at 9.

assessments

must be

U.S.S.G.

are

accorded

Becau

fact-specific, t

"considerable respect

See United States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).
___ _____________
______
The

instant

record

amply

supports

the distr

court's conclusion that Arismendy was an organizer or leader of t

drug

distribution conspiracy.

inferred

from the

trial evidence

cocaine discussions with

him; (4)

actively

court
that

could reasonably

Arismendy: (1)

ha

initiat

Verona; (2) convinced Lauzier and Hall

work with him; (3) attempted

for

The

to persuade Pelletier to sell cocai

supervised the

collection

of debts;

instructed Baker to take over the Maine distribution business aft

Lauzier and Hall were arrested; and (6) exercised a high
decision making

authority

both in
9

organizing the

degree

multi-kilogr

cocaine shipments from

and coordinating
permissible

New York to Massachusetts

Verona

and

inferences, the

finding that Arismendy

activity.

Cf.,
___

the

and in directi

female courier.

court was

not

Given

clearly erroneous

was an organizer or leader

e.g.,
____

Preakos,
_______

907

the

F.2d

at

of the crimin
9-10

(upholdi

enhancement where defendant, among other things, "exercised contr

over his distributors, at
with

regard to

least in the sense that he directed th

their role

in the

various cocaine

shipments a

apparently coordinated aspects of the distribution").

The
concluded

from the

involved

in

district
record

criminal

F.2d at

merely

3B1.1,

have

plausi

more participants

activity.

Under

we

secti

the defendan

the commission of the offense

comment. (n.l); see also Preakos, 9

___ ____ _______

10 (defendant included

3B1.1(a)).

or

could

is any person, including

who is "criminally responsible for

. . ." See U.S.S.G.
___

also

that five

Arismendy's

3B1.1(a), a "participant"

court

as a participant under

U.S.S.G.

Even without counting the persons Arismendy claims we

customers,

at

least

five

others,

Verona, the female courier, Giovanni,

including

Arismend

and one or more of the

fo

debt collectors, could reasonably have been considered participan

in Arismendy's criminal activity.

Thus,

the sentencing court's determination.

B.

The Criminal History Category

_____________________________

we find no clear error

Arismendy's final contention is that the

court

engaged in

"double counting"

when

it used

distr

the theft

10

criminal

threatening

resulted

from his June 1991, collection

to increase his

convictions

--

which,

appellant

claim

attempt against Rivard

criminal history category.

Arismendy bases th

claim on section 4A1.2(a)(1) of the Guidelines, which provides th

in computing a defendant's criminal history, a court may count on

sentences that were "previously imposed . . . for conduct not
of the

instant offense."

criminal

He contends

threatening convictions

pa

that because the theft a

resulted from

conduct

that w

part of the federal drug distribution conspiracy, these convictio

cannot be

used to increase

Arismendy

did not

sentence

can be

"plain error."

his criminal history category.

raise this
reversed on

claim

in the

this basis

district court,

only

See Fed. R. Crim. P. 52(b).

___

Sin

upon a

showing

He has failed to ma

such a showing here.

Three

criteria

restrict

reviewing

authority to reverse a sentence under the plain error rule.

a

reviewable

error

must

have

occurred

during

the

cour

Firs

sentenci

process.

Second, the error must be

the error

must affect

means

that the

"clear" or "obvious."

"substantial rights,"

defendant must

make a

error probably affected his sentence.

F.3d 70, 87-88

correct
affect[s]

the reviewing

an error,

however

most cas

specific showing

that t

United States v. Carrozza,

_____________
________

(1st Cir. 1993)(citing United States

______ _____________

S. Ct. 1770, 1777-78 (1993)).

satisfied,

which in

Thir

v. Olano, 1
_____

Even if all three criteria have be

court

retains

plain,

the

unless

discretion

the

error

not

"serious

the fairness, integrity or public reputation of judici

11

proceedings."

Olano, 113 S. Ct. at 1779 (quoting United States

_____
_____________

Atkinson, 297 U.S. 157, 160 (1936)).

________
Applying
Arismendy's double counting

the

plain

error

standard,

argument without reaching its

we

rej

merit

Where the error defendant asserts

on appeal depends upon a factu

finding the defendant neglected to

ask the district court to mak

the error cannot be "clear" or "obvious" unless the desired factu

finding is the

only one rationally supported by

the record belo

See
___

United States v. Gaudet,

_____________
______

966 F.2d 959,

denied, 973 F.2d 927 (1992), cert.

______
_____
Here, Arismendy's double
that the theft

962 (5th Cir.), reh

___

denied, 113 S. Ct. 1294 (1993

______

counting argument depends upon

and criminal threatening convictions

his cla

resulted fr

the unsuccessful effort to collect Rivard's cocaine debt.

the record
Report

on this subject is equivocal

describes the

theft and

without stating whether

collect Rivard's debt.
was

arrested

on the

August 7, 1991,

criminal

effort

The Presenten

threatening convictio

they resulted from Arismendy's

Moreover,
theft

and criminal

Arismendy was arrested

on

June

attempt

the Report states that Arismen

threatening

whereas the unrebutted evidence

established that
collection

at best.

Howeve

2,

charges

produced at tri

for his role in

1991.

Since

the de

Arismendy

nev

challenged this portion of the Presentence Report, the only suppo

for

his argument

in the

record is

that

Rivard's cocaine debt involved conduct that

theft and criminal

threatening convictions.

from this evidence that the

his attempt

to colle

could have resulted

While we

might inf

theft and criminal threatening charg

12

and the debt

collection effort are related, the

supports the

opposite conclusion.

that the district court committed

and

criminal

threatening

We

record also amp

therefore cannot

conclu

obvious error in using the the

convictions

to

enhance

his

crimin

history category.
III.
CONCLUSION
For
sentence is
affirmed.
________

the

reasons

expressed

above,

Arismend

13