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John M.
__________
_______
Cicilline, was on brief for appellant.
_________
Margaret E. Curran, Assistant United States Attorney, with
__________________
whom Lincoln C. Almond, United States Attorney and Kenneth P.
__________________
___________
Madden, Assistant United States Attorney, were on brief for
______
appellee.
____________________
August 30, 1993
____________________
____________________
*
TORRUELLA,
agreement,
Circuit
Judge.
_______________
defendant-appellant Pedro
count of conspiracy to
distribute
Pursuant
Reyes pled
to
guilty to
plea
one
intent to
In
agreement.
codefendant,
to the plea
I
I
_
Because Reyes
pled
guilty, we
distill
the
22 (1st
Tolentio
United States
_____________
Cir. 1993).
("Tav rez")
Reyes
were
the
relevant
transcript of
v. Castellone, 985
__________
and codefendant
subjects
of
Jos
F.2d
Tav rez-
combined
Drug
the
evening
of
Monday, January
27,
1992,
West
men proceeded
Reyes.
second floor
apartment.
grams
to a
of
from
the
apartment where
a future
sale of
they met
bathroom;
The
two ounces of
Reyes
and
27.4
Appollonia
cocaine.
Appollonia then
-2-
inquired if he
could purchase
on Wednesday
and
to come
by at anytime.
The
transaction
when Appollonia paid Reyes $900 for the 27.4 grams and
met
Providence.
next
day, January
Tav rez
at 1455
1992,
Mineral
as "Tony."
DEA Special
Spring
28,
Avenue
Agent
in North
him $3,100.
124 grams
his BMW,
accompanied by
a grey
Oldsmobile, from
his 61
When
building.
Reyes
to his
he waited.
Oldsmobile departed
Street.
The
DEA
the
Shortly
building,
before the
interpreted
returned
Reyes'
actions
to 61
Whipple
as
counter-
Saturday,
February
1,
1992,
cocaine.
He
directed Appollonia to
would have the cocaine.
at which
entering a
return later,
approximately
to 61 Whipple Street to
encountered Reyes
at
sale.
time he,
Ford
Reyes
Reyes,
At approximately
6:00
p.m., Reyes
followed
by
returned
the
grey
Appollonia returned
floor
apartment.
apartment
to 61
Whipple
Oldsmobile, and
was not
set
representing the
negotiated.
Tav rez
the second
left
the
Appollonia
that
BMW,
building.
Tav rez
cocaine.
quantity
indicated
his
the
54.9 grams of
$1,700,
entered
present.
inquired whether
at
Street in
price was
discount previously
Reyes
had
done
so.
Monday,
February 10,
approximately 1:15
1992, at
buy more
Street
address.
Botelho
observed
Reyes
adjacent lot.
to 61
Whipple
man
entering the
building.
arrested.
returned
to Mineral
Later,
Reyes
was arrested
at
61
one
charged
that
from a
time
unknown
until
-4-
February 10, 1992, Reyes and Tav rez conspired to distribute, and
18 U.S.C.
possessed
February 10,
1992,
cocaine
in
with
violation
2.
2.
Count five
intent
of 21
to
841(a)(1),
U.S.C.
it
on
841(a)(1),
counts three,
determined the
GSR
dropped charges.
The
quantity
therefore was
330.58 grams,
level of 22.
United States
by
two
U.S.S.G.
3E1.1(a).
history category of
which resulted
in
a base
Sentencing Guidelines
offense
2D1.1(c)(11)
levels
for
acceptance
of
responsibility.
and a criminal
to 41 months.
The judge
be sentenced based
an
yielding
of the GSR,
offense
of
he pled
level
of
12
after
reduction
for
-5-
acceptance of responsibility.
conduct to
That quantity
which defendant
pleads plus
of the
his 'relevant'
uncharged
conduct."
(1st Cir.
1990).
acts
'that were
scheme or plan
Garc a,
______
954
1B1.3(a)(2)).
criminal
"The drug
quantity is to be
part of the
same course
F.2d 12,
15 (1st
or common
United States v.
_____________
1992) (quoting
U.S.S.G.
acts
either not
(whether or
charged
or
charged
but
activity.
Cir.
of conduct
relevant conduct
dropped."
not
charged
as a
conspiracy),
15.
985 F.2d
Cir.
1990).
court's
offense of conviction.
We accord
considerable deference to
the district
Castellone,
__________
counts of conviction
and, absent mistake of law, will set aside those findings only if
clearly
erroneous.
at 15.
Reyes
preponderance
charges
of
evidence
convictions
physically
present
a sufficient
nexus between
January
February
and the
28,
the
1, and
these
transactions
and
that
the
district court found that Tav rez operated his own heroin concern
without
Reyes'
participation.
Reyes
asserts
and
in
furtherance
of
only
that, like
the
without Reyes'
Tav rez'
individual
interests.
With respect to the February
drug
deals, Reyes'
assertions are
ridiculous.
To
1992
begin with,
Reyes indicated at the January 27, drug sale, to which Reyes pled
guilty,
that
detective
purchase cocaine.
cocaine
could come
by
anytime
to
distribution
Appollonia encountered
address,
Appollonia
business.
Reyes outside
On
February
Reyes'
1,
detective
61 Whipple
Street
to
return
later
when the
cocaine
arrived.
Reyes left
the
Reyes
to Whipple
-7-
February 10
Although
the
transaction
drug
buy
is
similarly linked
involved
different
to
law
registered to Reyes
two observed
again returned
Botelho's
to Whipple
vehicle and
the surrounding
and finally
Mineral
that
Street before
the two
proceeding, and
area;
This series
to clear the
an investigation
that Reyes
went
of
provided the
evidence
connecting
Reyes
to
the
January
28
convincing.
district court's
that
sales
The
Reyes
that Reyes
reconnaissance mission
visit
as relevant conduct
worked
was
during the
the
closely together
supplier.
on
Given
the
February 10 transaction,
the
BMW and the grey Oldsmobile during the January 28 deal would also
appear to be surveillance.
infer
from
all the
evidence
that the
conduct
reasonably
underlying the
As we
-8-
"where there
circumstances,
is
more than
the sentencing
alternatives cannot
be clearly
one
plausible view
court's choice
erroneous."
the
among supportable
The
of
district court
of cocaine from
______
-9-