USCA1 Opinion

March 27, 1995

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 94-1915
UNITED STATES,
Appellee,
v.
JORGE SILVA, A/K/A VICTOR MALDONADO-GARCIA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
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Selya and Boudin, Circuit Judge.
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____________________

Eileen M. Donoghue on brief for appellant.

__________________
Donald K. Stern, United States Attorney, and Carole S. Schwar
_______________
_________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
guilty

to

charges of

Appellant,
conspiracy

to

Jorge Silva,

pleaded

possess cocaine

with

intent to distribute and possession of cocaine with intent to

distribute.

The district court, after a

lengthy hearing on

the issue of

the amount

appellant knew

of cocaine that

reasonably foresaw was involved

found

that the full nine

Accordingly,

on

July 21,

in the relevant transaction,

kilograms was attributable to him.

1994,

minimum ten-year prison sentence

21 U.S.C.

or

841(b)(1)(A)(ii).

it

imposed the

mandatory

prescribed by statute.
Appellant's

See
___

sole argument on

appeal is that
find that

it was clear error for the

the government

evidence that

proved by

district court to

a preponderance

Silva knew or reasonably foresaw

more kilograms

of cocaine

were involved in

underlying the

possession charge.

Appellant

of the

that five or

the transaction
urges that his

sentence be recalculated based upon a quantity of one-to-four

kilograms of cocaine.

We affirm.

The statements and findings by the district court at the

sentencing hearing, as well
assume that only the
reasonably foresaw

seem to

amount of drugs that appellant

knew or

as being involved

attributed to him for

sentence.

as the parties' briefs,

can be

purposes of imposing mandatory minimum

See United States

___ _____________

178 (E.D.N.Y.

in his conduct

v. Ekwunoh, 813
_______

F. Supp. 168,

1993), vacated on other grounds, 12

_________________________

F.3d 368

(2d Cir. 1994).

Although that argument has been presented to

this

have not

court, we

yet been

required to

resolve the

issue.

See United States v. Ortiz, 23 F.3d 21, 28 (1st Cir.

___ _____________
_____

1994); United States v. Beasley,

______________
_______
1993).

Nor are we required to

12 F.3d 280, 285 (1st Cir.

resolve it here.

The record

clearly supports a finding by a preponderance of the evidence

that appellant reasonably foresaw

the quantity of drugs upon

which his sentence was based.

"For sentencing purposes, the government must prove drug
quantities by a preponderance of the evidence." United States
_____________
v.

Sepulveda, 15
_________

district

F.3d

court's

judgment

reasonably foreseen
unless

clearly erroneous.

__, 114 S.Ct. 356

sentence

as

by the

Cruz, 996 F.2d 1307,

____

are

1161, 1198
to

(1st
the

Cir. 1993).
quantity

appellant will not

of

drugs

be disturbed

See, e.g., United States v. De La

___ ____ _____________
_____

1314 (1st Cir.), cert. denied,

____ ______

(1993).

The

Given that the

__ U.S.

mandatory minimum

applies so long as quantities of five grams or more

involved, this

court clearly

court

need only

determine whether

the

erred in attributing that amount of cocaine to

Silva. See Sepulveda, 15 F.3d at 1200.

___ _________
The
government

record

supports

proved by

the

court's

a preponderance

finding

of the

that

the

evidence that

Silva knew or reasonably foresaw that the drug transaction in

which

he participated

cocaine.

involved

Both appellant and

five or

more kilograms

the government

relied at

of
the

sentencing hearing

on transcripts

from the

trial of a

co-

-3-

defendant,

Jaime

Corrales, at

presided.

Those

responsible

for

transcripts
making

which

the

sentencing judge

demonstrate

deliveries

of the

that Silva

was

drugs

the

for

conspirators. They further show that at some point during the

transaction, Silva
of cocaine to
the

the owner of the

bag alone,

contained
States
______

brought the bag containing nine kilograms

he could

five or

more

cocaine. From the weight

have reasonably
kilogramos of

foreseen

cocaine. See
___

of

that it
United
______

v. Ortiz, 23 F.3d at 28 (concluding that "there would

_____

be no basis for
at least

five

crimes" where
heavy"

and

cocaine);
(concluding

finding that defendant did not

kilograms of

cocaine

the bags containing the

actually

contained

United
States
_______________
that

record

v.

were involved

in

his

cocaine "were visibly

twenty-five
Beasley,
_______

supported

foresee that

12

finding

kilograms
F.3d
of

at

of
284

"actual

knowledge"
of heroin
three

that transaction involved

where

kilograms

the suitcase

in fact

and defendant

had

suitcase.)

There being no clear

court's finding

with respect

sentence is affirmed.
________

more than one kilogram

to drug

contained more

lifted

and shaken

error in the

the

district

quantity, appellant's

See 1st Cir. Loc. R. 27.1.

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-4-

than