filed: September 16, 1992; As Corrected September 28, 1992. Second Correction December 10, 1992.
On Appeal From the United States District Court for the Eastern District of Pennsylvania. (D.C. Crim. Nos. 89-00300-04, 89-00300-05)
Before: Becker, Nygaard and Higginbotham, Circuit Judges
Defendants are two brothers, Antonio and Policai Collado, who lived in New York and supplied heroin to an extensive wholesale distribution organization based in Philadelphia. The government charged the Collados, other New York suppliers, and various members of the Philadelphia organization with conspiracy to distribute heroin in violation of 21 USC § 846 (1988). The Collados were tried by jury in the district court for the Eastern District of Pennsylvania. The jury convicted them of the conspiracy count and of six counts of using the telephone to facilitate the sale of heroin in violation of 21 USC § 843(b) (1988).
Their consolidated appeals raise two challenges to the district court's calculation of their base offense levels under the Sentencing Guidelines. First, they contend that the district court erred when it attributed to them quantities of heroin distributed by their co-conspirators. This contention requires us to explicate and apply the relevant conduct provision of the Sentencing Guidelines, USSG § 1B1.3, to three separate types of attribution: (1) attribution to both brothers of amounts distributed by the conspiracy before they joined it; (2) attribution to one brother of amounts the other brother supplied to the conspiracy; and (3) attribution to both brothers of amounts supplied to the conspiracy by other conspirators. We conclude that the district court properly attributed to one brother amounts distributed by the other. On the basis of this record, we cannot determine whether the first and third types of attribution were appropriate, however. Accordingly, we will vacate the judgment and remand for further development of the record and for resentencing.
The Collados also challenge the sufficiency of the evidence regarding the quantities involved in two specific transactions. We hold that the evidence regarding one of these transactions was insufficient to support the probation officer's estimate, which was accepted by the district court, of the amount of heroin involved. Accordingly, we will direct the district court to exclude that amount from its calculations on resentencing.
The evidence presented at trial showed that the Collados were part of a wholesale heroin distribution organization that operated from two grocery stores located in North Philadelphia. The Philadelphia conspirators obtained heroin from New York suppliers, including the Collados, and then sold it to others who intended to resell it.
On April 12, 1988, an agent of the Philadelphia DEA, Detective Fred Chavez, made the first of a series of undercover heroin purchases at one of the grocery stores. Chavez made three more purchases from the Philadelphia dealers over the next several months. The amounts purchased in the four transactions totalled 40.873 grams. [Presentence Investigation Report ("PSI") at PP 19, 21, 24, 27]
A court-authorized Title III interception of phone calls to and from one of the grocery stores was initiated on September 21, 1988. The surveillance continued until October 20, 1988, when the phone at the store was disconnected for eight days. The interception resumed on October 28, 1988, and continued until November 9, 1988.
It was through this telephone surveillance that the detectives identified Antonio and Policai Collado as New York suppliers of the Philadelphia dealers. Between September 21, 1988 and November 5, 1988, the Collados were in frequent contact with Pedro Eliado Frias, also known as Laito, an alleged manager of the Philadelphia organization who oversaw operations at one of the two grocery stores.*fn1
On October 13, 1988, Detective Chavez and another undercover agent travelled to New York with two members of the Philadelphia organization. There they purchased 125 grams of heroin from Buena Ventura Marte. On October 15, 1988, Philadelphia police arrested Ramon Rivera, who allegedly managed operations at the second grocery store.*fn2 Sixteen grams of heroin were seized from Rivera upon his arrest. The Collados were arrested in New York on August 1, 1989. No drugs were seized from them or found on the premises where they were arrested.
To tie the Collados to the conspiracy, the government primarily relied on two types of evidence: (1) the testimony of Rosa German, a member of the conspiracy turned government informant, and (2) tape recordings of the intercepted calls. German, who lived with Frias at the time of the alleged conspiratorial acts, testified that the Collados had both supplied the Philadelphia dealers with heroin. [App 621-25, 655-56, 698] The government's expert witness testified that the conversations between the Collados and Frias reflected drug transactions in which the Collados agreed to supply Frias with heroin. [App 246-351] Although the indictment charged the Collados with participating in the conspiracy beginning in April 1988, the government produced no direct evidence that the Collados were involved before late September 1988.
As we explain in detail at pages [typescript at 9-10], the base offense level for a defendant convicted of conspiring to distribute heroin depends upon the amount of drugs deemed "relevant" to the offense. In determining the Collados' base offense levels, the probation officer considered the following amounts to be relevant to the offense: the quantity police purchased from the organization in Philadelphia (40.873 grams) [PSI at PP 19, 21, 24, 27]; the amount seized from conspirator Ramon Rivera upon his arrest (16 grams) [PSI at PP 95 & 96]; the amount purchased from Buena Ventura Marte (125.4 grams) [PSI at P 35]; and an estimate of the quantity of heroin discussed by the conspirators in intercepted phone conversations (686.5 grams) [PSI at P 97]. The probation officer concluded that from April to November, 1988, the conspiracy distributed 868.773 grams of heroin. Using this total, the probation officer calculated the base offense level for both Collados as 30.*fn3
At sentencing, the Collados argued that the presentence investigation report incorrectly attributed to them quantities of drugs dealt by their co-conspirators (1) before they joined the conspiracy and (2) after they joined the conspiracy, but of which they had no knowledge. More specifically, they contended that, although the government's evidence indicated that they had supplied heroin to Frias on several occasions between September 21 and November 5, 1988, there was no evidence that either brother had been a member of the conspiracy before September 21, 1988, or that either had knowledge of or involvement with heroin that Frias purchased from others (such as Marte) after they joined the conspiracy.
The Collados also challenged the government's estimate of the quantities involved in two specific transactions. The government estimated that the first challenged transaction involved 62.5 grams of heroin and that the second involved 125 grams. Defendants claimed that the government failed to present sufficient evidence to justify these estimates.
The district court accepted the probation officer's calculation, concluding, without further explanation, that "the presentence report properly allocated the amount of drugs involved in this case." Based upon an offense level of 30, the court sentenced each defendant to a term of incarceration of 105 months on the conspiracy count and 48 months on each of the six substantive counts, all sentences to run concurrently.
The government contends that the district court's calculation of the defendants' base offense levels is a factual finding subject to the clearly erroneous standard of review. "When reviewing the sentencing decisions of the district courts, 'we exercise plenary review over legal questions about the meaning of the sentencing guidelines, but apply the deferential clearly erroneous standard to factual determinations underlying their application.'" United States v. Fuentes, 954 F.2d 151, 152-53 (3d Cir), cert denied, U.S. , 119 L. Ed. 2d 573, 112 S. Ct. 2950 (1992), quoting United States v. Inigo, 925 F.2d 641, 658 (3d Cir 1991). Accordingly, we exercise plenary review over the legal standard for determining when the calculation of a defendant's base offense level may include amounts of drugs distributed by persons other than the defendant.
Our review of the sufficiency of the evidence, an issue which arises both in regard to our application of the legal standard for calculating the base offense level and in regard to the amounts involved in the two challenged transactions, is governed by the clearly erroneous standard. Where, as here, the district court makes no independent findings of fact in relation to sentencing issues, but instead adopts the reasons set forth by the probation officer in the presentence investigation report, we view the report as containing the only findings of fact that support the court's sentencing decision. United States v. Belletiere, 971 F.2d 961 (3d Cir 1992).
IV. GENERAL PRINCIPLES FOR DETERMINING RELEVANT
CONDUCT IN CALCULATING THE DEFENDANT'S BASE OFFENSE LEVEL
In most narcotics cases to which the Sentencing Guidelines apply, the defendant's sentence depends to a great extent upon the quantity of drugs deemed "relevant" to the offense.*fn4 See USSG § 1B1.3. After the sentencing court determines the relevant amount of drugs, it refers to the Drug Quantity Table, USSG § 2D1.1(c), and chooses the base offense level that corresponds to that amount. The base offense level serves as a starting point; after making the initial determination regarding the base offense level, the sentencing Judge adjusts the base offense level upward or downward to reflect other factors, such as acceptance of responsibility or role in the offense, and then selects a sentence that falls within the applicable guideline range for that level.
The relevant conduct provision of the Guidelines, USSG § 1B1.3, directs the sentencing court to consider all conduct deemed relevant to the offense of conviction in determining the base offense level. Specifically, the provision directs the sentencing court to include in the base offense level certain amounts in addition to those amounts the defendant was convicted of distributing. At issue here is the portion of the relevant conduct provision that authorizes what has been referred to as "accomplice attribution," see William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of The Federal Sentencing Guidelines, 41 SC L Rev 495, 506 (1990). In this context, accomplice attribution is the inclusion ...