USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-1830
UNITED STATES,
Appellee,
v.
MARK H. SHRADER,
Defendant, Appellant.
____________________
No. 94-2002
UNITED STATES,
Appellee,
v.
RICKY GAGNON,
Defendant, Appellant.
__________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]

___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Tony F. Soltani, with whom Soltani Law Office was on brief

________________
__________________
appellant Mark H. Shrader; Jonathan R. Saxe, with whom Twomey & Si
________________
___________
Law Offices was on brief for appellant Ricky Gagnon.
___________
Jean L. Ryan, Assistant United States Attorney, with whom Paul
____________
____
Gagnon, United States Attorney, was on brief for appellee.
______
____________________
May 23, 1995
____________________

BOWNES,
BOWNES,

Senior Circuit Judge.

Senior Circuit Judge.
_____________________

In

this appeal,

defendants-appellants Mark Shrader and Ricky Gagnon challenge

the sentences imposed upon them

after they pleaded guilty to

conspiring to possess marijuana with the intent to distribute

it.

Having

carefully

reviewed the

record and

considered

defendants' arguments, we affirm.

I.
I.
__
The facts, which
investigation

reports

are derived from the

and

oral

and

presentence

documentary

evidence

introduced at the sentencing hearings, are as follows.

In late 1991 or early 1992, Gagnon, then a Colorado
resident,
Robert

met with

Audette

Hampshire.
marijuana

--

two

co-conspirators --

at

Bea's

Knowing that
in

Gagnon had

New Hampshire,

marijuana availability.

Restaurant

Lee Zahler
in

Epping,

and
New

previously distributed

Audette

queried

Gagnon about

Gagnon responded that,

in Colorado,

Audette could obtain large quantities of marijuana

for a low

price.
In

February

Denver, Colorado.
eventually took

1992,

Gagnon
them to

where they examined

moldy.

and

Audette

picked them up at the

his residence in

seventeen pounds of

twelve pounds of this marijuana

however, was

Zahler

flew

to

airport and

Aurora, Colorado,
marijuana.

Ten

to

were high quality; the rest,

Zahler expressed displeasure

with the

overall quality and theprice of the marijuana hehad examined.

-33

At
showed

some

point, Shrader

--

up at the Aurora residence.

Zahler and Audette

nickname stemmed
Motorcycle

from

his

After

with the

association

Mark."
with

Zahler informed

price

supplier --

Gagnon introduced him to

as "Mark" and "Bandido

Club.

displeasure

Gagnon's

of the

Shrader's

the

Bandidos

Shrader

marijuana he

of

his

had seen,

Shrader told Zahler he would have to go to Texas -- the point

of

origin

for

the

marijuana

Shrader's

associates

were

bringing into Colorado -- if he wanted it any cheaper.

Zahler and Audette then discussed with Shrader

the

possibility of their purchasing

fifty pounds of marijuana in

Texas.

Texas

They

"middled"
reach

that the

transaction would

be

by Gagnon, who knew Shrader's last name and how to

him.

seventeen

agreed

Zahler and
pounds

Subsequently,

they

Audette also agreed

of marijuana
concealed

they
it

in

had
a

to purchase the
already examined.

couple

of

stereo

speakers

and

shipped

received

$850 for

it

back to

putting the

New

Hampshire.

Gagnon

deal together.

Thereafter,

Gagnon

Zahler

Zahler and Audette returned home.

Later

that

month,

confirmed that Shrader

Audette in Texas.

called

could and would deal

On March

and

with Zahler and

4, 1992, Zahler and Audette flew

to Austin, Texas, checked into

the Radisson Plaza Hotel, and

called Gagnon to let him know where they were staying.

Later

that same day, Shrader came to the hotel in order to view the

-44

$40,000

Zahler and Audette had brought with them in order to

complete

the fifty-pound deal discussed in Aurora.

was scheduled

for the

however, when he
also would
Plaza.

He

next day.

learned that, on

be a law

Zahler

became concerned,

the following day,

enforcement convention at

and Audette

The deal

therefore moved

to a

there

the Radisson
Holiday Inn.

Because he had no other way to contact Shrader, Zahler called

Gagnon

in Colorado and informed him of his and Audette's new

location.

Despite

the

move,

Audette's

anxiety

level

increased and he flew back to New Hampshire.

At 6:00
up

at the

rejected

p.m. on that same

Holiday
it as

Inn with

told

Zahler

Bandidos, and

that

the

the

Shrader

told him

but that it would

also

president of

marijuana sample.

low-quality.

procure better marijuana,

Shrader

evening, Shrader showed

of

his

source of

Bandidos' local

he

could

take some time.

association
the

Zahler

marijuana

chapter.

with

the

was

the

Over the

next

couple of days, ten telephone calls were placed from Gagnon's

Aurora,

Colorado,

residence to

Zahler was staying.

Zahler's

room to

the

Holiday

Inn at

which

In addition, four calls were placed from

Gagnon's home

in Aurora.

Most

of these

calls were of short duration.

On

March

pounds of marijuana
sale

took place

7,

1992,

Zahler

from Shrader

at the

and four other

Holiday Inn.

-55

purchased thirty-five

Zahler

men.

The

paid Shrader

$31,500 in cash,

of which Shrader

One of the four other men present

took $3,200 for

himself.

at the sale -- the one who

carried the duffel bag of marijuana into Zahler's room -- was

wearing Bandidos paraphernalia.
into Zahler's room.
five

pounds of

Shrader accompanied this man

Zahler subsequently shipped the thirty-

marijuana to

an acquaintance

in Haverhill,

Massachusetts.
On August

25, 1993, a federal

grand jury returned

an indictment against Shrader, Gagnon, and six others.

alia,
____

the

indictment

charged

Shrader

and

Inter
_____

Gagnon

with

conspiring to possess marijuana with the intent to distribute

it.

21

U.S.C.

returned a

846.

On December 1, 1993, the

superseding indictment against Shrader

grand jury
and seven

others (including one of the original six co-defendants).

December 8,
charge.

1993,

Gagnon pleaded

guilty to

On

the conspiracy

On March 1, 1994, Shrader followed suit.

A. Shrader's Sentencing
A. Shrader's Sentencing
________________________
On
Shrader.
("BOL")

The
of

July

15, 1994,

court assigned
eighteen

based

the

district court

Shrader a
upon the

marijuana involved in the two deals.

(November

1, 1993)

added two

levels because

base offense
fifty-two

See U.S.S.G.
___

(drug quantity table).

it determined

manager/supervisor of the offense, see

sentenced

The

level

pounds

of

2D1.1(c)
court then

that Shrader

was a

3B1.1(c), subtracted

___

-66

two levels for acceptance

of responsibility, see
___

3E1.1(a),

and arrived at a total offense level ("TOL") of eighteen.

Shrader's criminal history,
alia,
____

five

dictated

driving-while-intoxicated

that he

be

assigned a

("CHC")

of III.

account

two of the DWI

conviction which

which included,
("DWI")

inter
_____

convictions,

criminal history

category

This assignment did not, however, take into

convictions and one careless driving

involved Shrader's use of

alcohol; nor did

it take into account the fact that Shrader was arrested again
_____
for DWI (and for criminal mischief) after his guilty plea but
prior to

sentencing

in this

case,

and that,

in

revoking

Shrader's bail, the federal district court had found probable

cause to

believe that Shrader had

driven while intoxicated.

See
___

4A1.1(c) (capping at

assigned

for previous

4 the number of CHC points

sentences of

less than

to be

sixty days).

The record reflects that, in connection with prior sentences,

Shrader

had

been

ordered

to

complete

substance

abuse

rehabilitation programs on at least three occasions.

Taking

note of

decided to depart upward

the uncounted

conduct,

the court

because Shrader's CHC significantly

understated both his criminal

history and his predisposition

towards recidivist

See
___

behavior.

4A1.3 (endorsing upward

departures where the CHC "significantly

seriousness

of

the

likelihood that the

defendant's

under-represents the

criminal

defendant will commit

history

or

the

further crimes").

-77

Following

the procedure

prescribed

in

found that Shrader's criminal history most

that of

a defendant

with a

CHC of IV.

4A1.3, the

court

closely resembled
It

then sentenced

Shrader at the upper end of the guideline range applicable to

a

defendant with a TOL of eighteen and

a CHC of IV:

fifty-

one months' imprisonment.

B. Gagnon's Sentencing
B. Gagnon's Sentencing
_______________________
On August 31, 1994,
which Gagnon testified that

following a two-day hearing at

he was involved in the

Colorado

transaction but not the Texas transaction, the district court

sentenced Gagnon.
and Audette
transaction,
Robert

Relying

on affidavits submitted by Zahler

which stated that

testimony

Quinn which,

Gagnon had middled

from

inter
_____

New

Hampshire

alia, vouched
____

the Texas

State

Trooper

for Zahler's

and

Audette's credibility and rebutted Gagnon's testimony that he

was never involved

in any drug deals

other than the

one in

Colorado, and documentary evidence of the phone calls between

Gagnon's Aurora residence and
Zahler and Audette stayed,

the hotels in Austin at

which

the court rejected Gagnon's claim

regarding the Texas transaction.

The
eighteen

court

based

upon

involved in the two

levels
perjured

for

therefore
the

fifty-two

transactions.

obstruction

himself at

assigned

of

-88

pounds

BOL

of

of

marijuana

The court then

added two

justice

the sentencing

Gagnon

(finding

that

hearing), see
___

Gagnon
3C1.1,

subtracted three levels for acceptance of responsibility, and

arrived

at a

TOL of seventeen.

Gagnon's CHC

was I.

There was

The court thereafter

near the lower

end of

the guideline range

defendant with

a TOL of seventeen

no dispute that
sentenced Gagnon
applicable to

and a CHC of

I:

twenty-

five months' imprisonment.

II.
II.
___
On appeal, Shrader
court's

determinations

assigns error

that

his

CHC

to the

district

significantly

underrepresented both his criminal history and his recidivist

proclivities.

Shrader also challenges the court's two-level

manager/supervisor
assigns

enhancement

error to

thirty-five

the

pounds

of

court's

under

3B1.1(c).

attribution

marijuana

involved

Gagnon

to him
in

the

of

the
Texas

transaction, and to its two-level enhancement for obstruction

of justice.
Sixth

Amendment

hearing.
A.

He

also contends that

confrontation

he was deprived

rights

We discuss each appeal in turn.

Shrader's Appeal

at

his

of his

sentencing

A. Shrader's Appeal
____________________
Shrader's challenge to his
pronged.

First, Shrader contends that a CHC of III does not

"significantly
criminal

CHC enhancement is two-

under-represent[]

history or

further crimes."

the

Second,

the

seriousness of

likelihood that

[his]

[he] will

commit

he asserts that the extent

of the

-99

departure was unreasonable in light

circumstances.

of the departure-related

Neither argument persuades us.

We have observed:
[A]ppellate review of a
decision to
depart
may involve
three subsidiary
questions:
1) review of the departurerelated
circumstances
to
determine
whether or not they are of a kind or
degree that they may appropriately be
relied upon to justify departure; 2)
review of the evidence to see if it
supports the departure-related findings
of fact; and 3) review of the record
support for the direction and degree of
departure.

United States v. Rivera, 994

______________
______
(citation and internal

F.2d 942, 950

quotation marks omitted).

second argument -- which falls

these

three

categories

standard of review.
degree
for,

--

will take place

Shrader's

squarely within the third

is

subject

Id. ("review
___

the sentencing

(1st Cir. 1993)

to

deferential

of departure direction and

with full awareness

court's

of

superior feel

of, and respect

for the

case")

(citation and internal quotation marks omitted).

Shrader's first argument
the first
Rivera
______

of these three

as

involving "a

circumstances, as
vantage
ordinary,

point,

seen
are

falls within a subset

categories, a subset
judgment
from

usual

the
or

and to what extent."

about

unusual,

described in

whether the

district

of

court's
ordinary

given
unique
or

not

Id. at 951 (contrasting this

___

subset with the "quintessentially legal" type of category one

question, which

requires that we simply

-1010

interpret the words

of a guideline).
take

on

before

Because a district court may

the unique
it

and

circumstances

is

likely

Guidelines cases (and

the

extraordinary

"unusualness"

to

of

have

the particular
seen

therefore will more

case),

we

determination

review

"with

have a better

more

case

"ordinary"

readily recognize
district

court's

full awareness

of,

and

respect for, the trier's superior feel for the case, not with
the understanding that review is plenary."
(citation and
district

internal quotation marks omitted).

court's findings

understated

See id. at 951-52

___ ___

both

predisposition

that a

Shrader's

CHC of

criminal

towards recidivist

Thus, the

III significantly
history

behavior are

and

his

entitled to

deference.
Shrader devotes
criminal
spends

history was
little

determination
the

accurately

effort
that

great energy

captured by

addressing

CHC III

to arguing

the

CHC III,

district

court's

We note

latter "recidivist determination" alone, if within

the district
departure.

but

significantly under-represented

likelihood that he would commit further crimes.

that this

that his

court's discretion, is sufficient

See
___

to support a

4A1.3 ("A departure . . . is warranted when

the criminal history category

significantly under-represents

the seriousness

of the

defendant's criminal history

likelihood that

the defendant will

or the
__

commit further crimes.")

(emphasis supplied).

In this case,

however, we think

that

-1111

the

record

evidence of

extremely dangerous

Shrader's

offense of

tendency

to repeat

DWI is sufficient

the

to uphold

both of the court's findings.

____
We acknowledge that
CHC

of III

criminal

--

which covers

defendants

history points -- is likely

more than once

and therefore likely

recidivist tendencies.
points

any criminal defendant

for each

to

six

to have been convicted

to have exhibited

4A1.1 (assigning

prior sentence

month; (b) two points

not counted under

See
___

with four

with a

some

(a) three CHC

exceeding one year

and one

for sentences of more than

sixty days

section (a); (c) one point (up

to a total

of four) for sentences not counted under (a) or (b); and (d)(f)

additional points

not

relevant here).

for specific
And

capping at four the number

we further

offense characteristics
acknowledge that,

by

of less-than-sixty-days sentences

that can be counted,

of some
record

4A1.1(c) contemplates the disregarding

misdemeanor criminal
of persistently

behavior.

Even

disregarding the

so, Shrader's

law strikes

us as

unusual.
Because Shrader
sentence

of more

convictions, only

somehow

than sixty
three of

never received

days for any

of his

these convictions (along

fourth, non-DWI misdemeanor conviction) were counted

purposes.

prison
five DWI
with a
for CHC

Thus, as we have noted, Shrader's CHC did not take

account of two DWI convictions.

Nor did it take into account

-1212

his careless-driving

conviction.

Finally, it did

not take

account of the DWI arrest on which the federal district court

had held a probable cause hearing in revoking Shrader's bail.
See supra at 7.
___ _____
In all, Shrader's CHC took account of only three of
seven incidents during which

Shrader threatened the lives of

_____
himself

and

others

by

compromised by alcohol.
that

Shrader

had

operating

thrice

the

district

determining that
crimes than
light of
in

been

court

Shrader was

abused

undergo

its

we cannot

discretion

And in

the illegal conduct

engaged, we cannot say that

its discretion

history is

in

commit further

the typical defendant with a CHC of III.

court abused

while

the very behavior

more likely to

the life-threatening nature of

______

criminal

to

In view of all this,

which Shrader has repeatedly

the

vehicle

ordered

designed to deter

underlying these incidents.

that

motor

And it did not account for the fact

rehabilitation programs

say

more serious

in finding

that Shrader's

than that of

the typical

defendant with a CHC of III.

Shrader also argues that the degree of departure -ten months beyond
range

--

asserting,

the upper end of

constituted

an

of

discretion.

In

so

Shrader points out that even if his two other DWI

convictions had been counted,

of III.

abuse

the applicable guideline

He contends that,

he still would have had

in essence, he was

-1313

a CHC

given a ten-

month

sentence

for his

most

recent DWI

arrest

asserts, should not have been considered at all.

which, he
See
___

4A1.3

("a prior arrest record itself should not be considered under

______
4A1.3")
overlooks

(emphasis

supplied).

the careless

probable cause

his

argument

driving conviction

determination on the most

More importantly, it
of

His

and

repeating

the same

the court's

recent DWI arrest.

disregards the recidivist

constantly

completely

implications

dangerous

criminal

behavior despite previous sentences containing rehabilitative

components aimed directly at the behavior.
________ __

When evaluated in

this context, Shrader's argument falls far short.

The
followed the

record

reflects

that

recommendation of

Shrader's criminal
closely resembled

history

the

court

4A1.3 by

and recidivist

that of a defendant with

then sentencing Shrader within the guideline

for a

defendant with a CHC

of IV.

The

faithfully

determining that
tendencies

most

a CHC of IV, and

range specified

court's process and

reasoning were impeccable, and resulted in a sentence that is

facially reasonable.

There was no abuse of discretion in the

district court's degree of departure.

Shrader's
manager/supervisor

challenge
enhancement

to

the

court's

pursuant

to

two-level
3B1.1(c)

requires

less

determination

discussion.
only for

We

clear

review

error, see
___

the

court's

United States
_____________

v.

-1414

Morillo, 8 F.3d 864,

_______

871 (1st Cir. 1993), and

perceive none

here.
Shrader argues
most favorable
that he was

to the

that the record, read

government, establishes no

a "steerer," a "go-between,"

in the Texas and Colorado transactions.

Sostre, 967 F.2d
______
"steers"

drug

considered a

728, 733
buyers

in the light

to

or a "functionary"
See United States v.
___ _____________

(1st Cir. 1992)

sellers

manager/supervisor

more than

(one who

ordinarily

under

merely

cannot

3B1.1).

be

Shrader

misreads the record in making this argument.

As

the

district court

observed

in its

detailed

findings

of fact,

Shrader did

together;

he was,

in fact, the

Bandidos

conducted the

meeting and
organization
participants
Texas.

--

an
to

organization
the

deal

When Zahler balked

did,

procure

oversaw

the

execution

Bandido

carried

the

Shrader accepted and

the spot.

In sum,

with

at the quality

the

of the marijuana

deal;

into Zahler's

counted the money, and

Shrader managed the

other

consummated in

material.

the Texas

marijuana

At

several

Shrader stated that he

of

whom the

Shrader committed his

subsequently

higher-grade

people

Texas sales.

sale in Aurora, Colorado,

--

than bring

principal through

Colorado and

first presented in Texas,

later

far more

could, and
And

Shrader

while

another

hotel

room,

paid himself on

Colorado and

Texas

transactions, and supervised at least one other individual in

-1515

the course of so doing.

comment.

(n.2) ("To

No

qualify

more is required.
for an

See
___

adjustment under

3B1.1,
this

section, the defendant must

manager, or

have been the organizer, leader,

supervisor of one or

more other participants.")

The district court's role-in-the-offense enhancement

was not

clearly erroneous.
B. Gagnon's Appeal
B. Gagnon's Appeal
___________________
Gagnon concedes that his challenges to the district
court's attribution
transaction

to him of

and imposition

the marijuana from

of

the obstruction

the Texas
of

justice

enhancement (for denying involvement in the Texas transaction

at the sentencing hearing) rise or fall on the sustainability
of the court's

factual finding that

_______

the Texas transaction.

Gagnon was involved

in

Because the court's finding is easily

sustainable, Gagnon's arguments necessarily fail.

We will affirm
justice enhancement

a district court's

unless it is clearly

States v. Ovalle-Marquez, 36
______
______________

obstruction-of-

erroneous.

United
______

F.3d 212, 225 (1st Cir.

1994),

cert.
_____

denied, 115 S. Ct. 947 (1995).

______

And in the absence of

clear

error, so too will

district court's drug

we affirm a

attribution, relevant-conduct determination, United States v.

_____________
Innamorati, 996
__________

F.2d 456, 489 (1st Cir.),

S. Ct. 409 (1993),

v.

Olivier-Diaz, 13
____________

cert. denied, 114

_____ ______

and credibility assessment, United States

_____________
F.3d 1, 4

(1st Cir. 1993).

Thus, our

inquiry reduces

to whether the district

court clearly erred

-1616

in disbelieving Gagnon's
was involved in the

testimony and

finding that

Texas transaction.

We discern

Gagnon
no clear

error in the court's finding.

As
its

finding

Audette,

the

we already
on

the

have explained, the

affidavits

testimony

from New

submitted

court premised
by

Hampshire

Zahler

State

and

Trooper

Robert Quinn, and the documentary evidence of the phone calls

between Gagnon's Aurora residence and the hotels

in Texas at

which Zahler and Audette stayed during the days preceding the
Texas drug deal.
and

Gagnon does not dispute that, if the Zahler

Audette affidavits

adequate basis

are credited,

to support the

this

is a

court's finding.

more than
He argues,

however, that the court erred in crediting these "unreliable"

affidavits over his own sworn testimony.
that the other
probative

to

evidence is
ground the

He further contends

insufficiently corroborative
challenged

finding.

Because

or
we

disagree

with Gagnon's

Audette

affidavits,

argument

we need

regarding the

not

Zahler

consider the

and

independent

effect of Quinn's testimony and the telephone records.

It is
with wide
sentencing

settled that

discretion to
guideline

decisions

reliable

hearsay

Montoya,
_______

967 F.2d 1, 3 (1st

Ct. 507

is vested

determine the information

consider

denied, 113 S.
______

a "sentencing judge

will

be

evidence."

based,

on which
and

United States
______________

may
v.

Cir.) (citation omitted), cert.

_____

(1992); see also

___ ____

6A1.3

(evidence

-1717

with

"sufficient

probable
regard

indicia

accuracy" may be
to

determining whether

Montoya, 967 F.2d

at 3

reliability

to

support

its

considered at sentencing "without

its admissibility

applicable at trial").
in

of

under

the

rules of

evidence

The judge also has "wide

discretion"

sentencing information

is reliable.

n.6.

Mindful of

these tenets,

we

_______
believe that

the district court acted

within its discretion

in crediting the Zahler and Audette affidavits.

The thrust of Gagnon's
Audette,

as cooperating

incentives

to

uncorroborated

statements

should

certainly

concede

uncorroborated,
should

co-conspirators,

inculpate

affidavits

be

argument is that Zahler and

Gagnon
contained

rejected
that

affidavits

be viewed with some

out

had

that

the

in their
of

cooperating

strong
largely

self-serving

hand.

uncorroborated,
of

such

While
or

we

largely

co-conspirators

skepticism, we see

no basis for

adopting what would amount to a per se rule of unreliability.

___ __
We think the wiser
and credibility

course is to leave reliability

decisions

determinations to the informed discretion of

the district court, while rigorously ensuring that defendants

have a sufficient opportunity

to impeach tenuous evidence in

appropriate ways, such as through cross-examination or by the

introduction of evidence of their own.
Here,
fair

process.

the district
The

court

record shows

-1818

provided Gagnon
that

Gagnon had

with a
a

full

opportunity
Moreover,

to
during

elicited the
cooperation
emphasize

tell

the

his

court

his

cross-examination

self-serving nature of
with the

the

side

government.

almost

complete

of

of

the

story.

Quinn,

Gagnon

Zahler's and
Gagnon

absence

Audette's

also was
of

hard

able to
evidence

corroborating the statements made in the affidavits.

Gagnon
entitled
frames

to

makes

sentencing, arguing

as

that
such

hoc argument
___
and

challenge to

the Sixth

Confrontation

as this

(and we

Clause

take

was

his

Amendment's
in the

applies

no position

see United States v.

___ _____________

he

indeed, he

Whatever merit there might be

the

contention here, but

___

that

Audette;

a constitutional

that it violated

Confrontation Clause.

situations

post
____

cross-examine Zahler

the argument

contention

in

on the

Tardiff, 969 F.2d

_______

1283, 1287 (1st Cir. 1992) ("in the usual case, a defendant's
Sixth Amendment

right to confront the

witnesses against him

does not attach during the sentencing phase")), Gagnon cannot

assert it in

this appeal because he did

not attempt to call

Zahler and Audette as witnesses at his sentencing, cf. United

___ ______
States
______

v.

Garcia,
______

34

F.3d

6,

(sentencing challenges not first

10

n.1

(1st

Cir.

1994)

presented to the sentencing

court are

ordinarily waived on appeal).

Application of the

waiver rule is especially appropriate in this instance, where

the district court indicated on the record that it would have
allowed Gagnon to

cross-examine Zahler and Audette had he so

-1919

requested, see United States

___ _____________
order at 2
failure

(D.N.H. Sept.

to order

Zahler

v. Gagnon, Cr. No. 93-61-02-JD,

______

13, 1994), and

and Audette

to

where the

court's

appear cannot

be

considered plain error under Fed. R. Crim. P. 52(b).

In the end, we
court's determination
transaction.
the court's

see no clear error in

the district

that Gagnon was involved

in the Texas

We accordingly
relevant conduct

reject Gagnon's

challenges to

determination and to

its two-

level enhancement for obstruction of justice.

III.
III.
____
For the reasons stated,

we affirm the sentences of

______

defendants Mark Shrader and Ricky Gagnon.

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