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No. 95-2283
Appellee,
v.
JUANA ORTEGA,
Defendant, Appellant.
____________________
____________________
Before
Sheldon Whitehouse,
___________________
United
States
____________________
Attorney, was
on
Per
Per
Curiam.
Curiam.
Juana
Ortega
appeals
both
her
___________
flawed
that
sentence.
gave an improper
there
was
insufficient
conviction.
She
also
in
was
evidence
argues error
her trial
to
support
the trial
Finally, she
her
court's
disputes
We affirm.
I.
Ortega
in violation
conspiracy
U.S.C.
ongoing
of 21 U.S.C.
to distribute
841(a)(1),
undercover
846.
crack cocaine
Her
operation
2, and
in violation
arrest resulted
conducted
by
of 21
from
the
an
Drug
Between
December
18
and
19,
1994,
Hector
San
San
phone
that this
Burger King
woman.
the
time the
parking lot on
crack would
San Martin by
be delivered
December 19
by a boy,
in the
girl, or
apartment
Valdez
was
using
Providence.
-22
at
37
Labin
Street
in
On the day of
phone that
a lady
in white
Martin by
drugs.
The
observed
conducting surveillance
Valdez
from
and Ortega
emerge
the Labin
pointed
Street
After Valdez
According
entered
to San
Martin's testimony,
when Ortega
San
Martin explained
that he wanted
to check
After
the quality,
Leaving
out.
in the trunk
and got
arrest
After
screaming;
few seconds,
in to arrest
Ortega got
out
of the
car
and ran
Valdez, who had also tried to run, was caught and arrested as
well.
In
her statement to
police, Ortega
complained of
severe neck pain due to a thyroid condition and said that she
-33
to rest.
only that
that
at some point
because
of her
walk to the
Burger King as
an
physical
to do a
pain, she
was
"favor" and
not thinking
clearly.
trial,
verdict
count.
the jury
informed the
on all counts
The
court
then
court that
issued
it had
reached a
on the conspiracy
supplemental
charge
reach a verdict.
verdict on
At sentencing,
the court
had a
of crack she
was delivering
of
I.
to U.S.S.G.
5C1.2 and
minimal role in
reduced
the offense.
from 32
to 26,
Thus, the
and defendant
Ortega's
offense level
was sentenced
was
to 63
II.
Ortega's
insufficient evidence
court.
motion
for
argument
acquittal
was denied
based
by the
on
an
district
government,
-44
reasonable doubt.
1991).
court's
Dockray, 943
_______
We therefore affirm
29(c) motion.
F.2d
the district
See Fed. R.
___
Crim. P. 29(c).
To prove
the
had
an
intent
offense.
See
___
to
distribute cocaine
United States
_____________
beyond
Ct.
1986
statement
F.2d 902,
doubt.
See
___
905
United States
_____________
(1995).
to San
deliver the
v. DeLutis, 722
_______
substantive
a reasonable
S.
the
guilt
--
Such
Martin that
evidence
a woman
denied, 115
______
included
Valdez's
wearing white
with Valdez to
v.
would
the Burger
her
This
case is
unlike
those Ortega
cites for
the
proposition that
a single
evidence of conspiracy.
drug transaction
is insufficient
Cir. 1980).
facts in
there
the case.
was insufficient
to tie
-55
the defendant
buyer
to the
F.2d at
502,
905-06;
conspiracies.
Cir.
evidence of conspiracy
1988) (rejecting
a common
the argument
purpose on
sale).
the part
here, Ortega
and Valdez.
Moreover, in
See Acevedo,
___ _______
to infer based on
that
be insufficient
A single sale
can
of the
sellers --
842 F.2d
at 506.
direct or circumstantial
no basis
722
505-06 (1st
establish
See DeLutis,
___ _______
question.
was
In
Izzi,
____
there
was
no
evidence
in the indictment.
conspiracy, and
of
agreement
linking
the
Here, there
it is not
difficult to infer
knowledge and
agreement.
Other
distinguishable.
cases
Ortega
See,
___
cites
for
support
are also
Ocampo, 964
______
of
involvement
substantive
finding that
was
crime and
greater
than
thus suffices
there was an
mere
knowledge
to support
of
the
the jury's
an intent to
distribute.
40
-66
association
with
criminals
conspiracy conviction).
was
insufficient
to
support
Ortega
judge
gave to
deadlocked
on
committed
the
jury
the
conspiracy
no error.
when
it
count.
jury
returned
that
The
it
trial
was
court
v. Angiulo,
_______
announced
a verdict
thirty
minutes later
That the
is
not, as
motion
abuse of
for new
trial fares no
discretion or
States v. Rodriguez,
______
_________
better.
misapplication of
We
law.
See United
___ ______
The
of justice
would
Indelicato,
__________
611
otherwise result.
F.2d
even
Cir.
suggests
1979).
v.
Ortega
no
justice.
780
that
(1st
United States
_____________
presents
that
claim
376, 387
See
___
a miscarriage
miscarriage
of
-77
It was
Lastly,
equally
challenges
her
should have
instead of
have
Ortega
sentence
first that
allowed a
under U.S.S.G.
Ortega's first
downward departure
5K2.13.
for
on
two
the judge
powder cocaine
diminished capacity
to the Sentencing
Guidelines, calculated
the base
drug
crime.
See
___
involved in
the
U.S.S.G.
on the
2D1.1(c).
As
for
jurisdiction
to review
1995);
03
Ortega's
second
claim,
a discretionary
v. Morrison,
________
we
are
refusal
46 F.3d 127,
without
to depart.
130 (1st
Cir.
see also United States v. Saldana, 109 F.3d 100, 102___ ____ _____________
_______
(1st
Cir.
explicitly
1997).
address
While
Ortega's
the
district
request
for
court did
departure
not
for
of
the case
that, rather
as well
as the
than believing
court's remarks
at sentencing
it lacked authority
to depart,
130.
Ortega has
Affirmed.
________
-88
legal error