OSVALDO RODRIGUEZ-CARDONA, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-1686

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-57a) is reported
at 924 F.2d 1148.

                             JURISDICTION

   The judgment of the court of appeals was entered on January 23,
1991.  The petition for a writ of certiorari was filed on April 22,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court properly admitted evidence of
extrinsic criminal conduct.

   2. Whether the district court correctly departed upward from the
sentencing range indicated by the Sentencing Guidelines.

                               STATEMENT

   After a jury trial in the United States District Court for the
District of Puerto Rico, petitioner was convicted on four counts of
possessing cocaine with intent to distribute it, in violation of 21
U.S.C. 841(a)(1) (Counts 1, 3, 5, and 7), and on four counts of
distributing cocaine, in violation of 21 U.S.C. 841(a)(1) (Counts 2,
4, 6, and 8).  The district court sentenced him to concurrent 20-year
terms of imprisonment on Counts 1-4, which were pre-Sentencing
Guidelines counts, and to concurrent terms of 175 months' imprisonment
on Counts 5-8, which were post-Sentencing Guidelines counts, with the
sentences on Counts 5-8 to run consecutively to the sentences on
Counts 1-4.  The district court also sentenced petitioner to
concurrent five-year terms of special parole or supervised release on
each count and fined him $200,000.  The court of appeals affirmed.
Pet. App. 1a-57a.  /1/

   1. In October 1987, the FBI received information from the Puerto
Rico police that petitioner was using his restaurant in Salinas,
Puerto Rico, for illegal drug trafficking.  Based on that information,
the FBI decided to use an informant, Angel Santiago Rodriguez
("Santiago"), to buy drugs from petitioner under FBI surveillance.
Santiago had previously cooperated with the FBI during a 1986
investigation into several murders traced to the Martinez Torres gang,
of which Santiago was a member.  Through an associate in the Martinez
Torres gang, Santiago had become acquainted with petitioner.  Gov't
C.A. Br. 4-5;  Pet. App. 3a.  /2/

   Petitioner sold cocaine to Santiago on four occasions between
October 1, 1987, and March 12, 1988.  On each occasion, FBI agents
gave Santiago cash, wired him with a recording transmitter, and
established surveillance.  Santiago then met with petitioner, either
at petitioner's restaurant or at his home, and purchased varying
amounts of cocaine.  After each purchase, the agents retrieved the
tape recordings and the cocaine.  Both before and after each purchase,
the agents searched Santiago, his vehicle, and his companions to
ensure that Santiago had no narcotics in his possession other than
those purchased from petitioner.  Gov't C.A. Br. 3, 5 & n.3;  Pet.
App. 3a-4a.

   After the fourth transaction, FBI agents arrested petitioner and
searched his house pursuant to a warrant.  They found a triple-beam
scale and plastic sandwich bags, items frequently used by drug
traffickers.  Subsequent chemical analysis revealed cocaine residue on
the scale.  Gov't C.A. Br. 11;  Pet. App. 4a.

   2. The evidence introduced by the government at petitioner's trial
consisted of the cocaine that petitioner sold to Santiago, the tape
recordings of the sales, and the testimony of Santiago and the FBI
agents who monitored the sales.  Gov't C.A. Br. 3;  Pet. App. 4a.
Petitioner's claims in this Court focus on a series of incidents that
he says denied him a fair trial.

   a. FBI Agent Pedro Toledo testified that Santiago came to the FBI's
attention during its investigation of the murders in which the
Martinez Torres gang was implicated and that Santiago had provided
detailed statements about the murders.  Defense counsel objected to
that testimony.  The district court overruled the objection but
admonished the jury that "in this case the defendant is being tried
only on the charges set forth in the indictment and nothing else."
Gov't C.A. Br. 16;  1 Tr. 16.

   b. Santiago and two FBI agents testified about meetings with
petitioner on July 8 and 9, 1988, during which petitioner and Santiago
discussed cocaine purchases but no purchases were made.  Defense
counsel objected that the testimony concerned events beyond the time
frame of the indictment, which alleged transactions between October
15, 1987, and March 12, 1988.  The district court admitted the
testimony, finding that it was probative of intent and that its
probative value outweighed any prejudicial effect.  Gov't C.A. Br.
17-18.

   c. During Santiago's testimony, as a recording of a meeting with
petitioner was about to be played, defense counsel objected to remarks
on the tape concerning counterfeit money and numbers racketeering.
Counsel argued that those remarks did not concern this case.  The
district court permitted the jury to hear the remarks, noting that
they had been made by petitioner and were "part of the whole
conversation." At the same time, the court cautioned the jury that
petitioner was on trial only for the charges in the indictment.  3 Tr.
15-16, 18;  see also Pet. App. 13a;  Gov't C.A. Br. 20.  The district
court gave a similar cautionary instruction after an FBI agent
testified that Santiago stated that petitioner had possessed
prohibited sea turtle meat.  2 Tr. 9;  see also Pet. App. 13a-14a;
Gov't C.A. Br. 21 n.9.

   d. During Santiago's testimony about an October 22, 1987, meeting
with petitioner, the prosecutor asked, "And what happened thereafter,
sir?" Defense counsel objected, and the district court overruled the
objection.  Santiago the testified:  "We went there because we had the
intention of recording what he said.  Some comments of the District
Attorney from Guayama that they had planned to kill." The district
court immediately admonished the jury:  "I'm leaving in this evidence
only for the purpose of why he went there as to the answer just
elicited.  Consider it why he went there and not the contents of the
answer.  So you must disregard that.  You are to disregard that."
Later that day, the court elaborated on its earlier cautionary
instruction, telling the jury "that you should disregard, get out of
your minds completely that testimony about that threat to a
commonwealth district attorney." 3 Tr. 19-20;  51-52;  Gov't C.A. Br.
21-22.

   e. During his closing argument, the prosecutor observed that
Santiago met petitioner through persons who had contracted to have
petitioner killed and that the contract was drug-related:  "Because of
drugs.  For drugs.  Killings, brutal killings.  Drugs." The prosecutor
later commented that petitioner's restaurant only appeared to be a
legitimate business, "because behind those walls a deadly trade was
being conducted, the deadly trade of narcotic trafficking." Gov't C.A.
Br. 25;  2/13/89 Excerpt 5-6, 9.

   In his closing argument, defense counsel attacked the credibility
of Santiago by characterizing him as a confessed participant in 15
murders and a "professional killer at the age of 24 years old."
Counsel also urged the jury to reject any suggestion that petitioner's
restaurant was a front for drug trafficking.  Gov't C.A. Br. 25-26;
2/13/89 Excerpt 16-17, 21-22.

   In his rebuttal argument, the prosecutor acknowledged that Santiago
was involved in murders but observed that "these murders are not
because fish is sold in (petitioner's restaurant), and these murders
are not because (the restaurant) is a legal business.  These murders *
* * are because of this, because of drugs." Because petitioner had a
legal business like the restaurant, "(t)here was no need (to sell
drugs).  But what do we have here?  We have here greediness, evilness,
and we have here drugs." The government, the prosecutor said, needed
the Santiagos "of this world to bring forth to you the cocaine that is
sold concealed by (petitioner)." The prosecutor asked:  "(W)ho was the
only one able to make those purchases?  A dealer.  A drug dealer.  A
murderer.  That is the type of friends of (petitioner)." Defense
counsel did not object to any of the prosecutor's statements.  Gov't
C.A. Br. 26-27;  2/13/89 Excerpt 25-26.

   f. In sentencing petitioner on the four Sentencing Guidelines
counts, the court found that the 60 grams of cocaine involved
established a base offense level of 16.  The court determined that,
pursuant to Sentencing Guidelines Section 3B1.1(a), the offense level
should be increased by four points to 20 because petitioner was a
leader in the offense.  /3/ The court found that petitioner's criminal
history category was III and the applicable Sentencing Guidelines
range was 41-51 months.  /4/ The court then determined that Category
III significantly underrepresented the seriousness of petitioner's
criminal history and the likelihood of his recidivism.  Gov't C.A. Br.
37;  6/9/89 Tr. 19-20.  /5/

   In concluding that petitioner's criminal behavior was significantly
more serious than that of other defendants in the same criminal
history category, the court found that petitioner had ordered the
murder of an adverse witness in a prior state criminal trial, was
implicated in the murder of another witness scheduled to testify
against petitioner at a probation revocation hearing, and had planned
to murder the district attorney who sought to revoke petitioner's
probation.  The court also found that petitioner had defrauded an
insurance company of approximately $37,000;  had used a nine- or
ten-year-old boy as a messenger in his drug business;  was one of the
most important drug traffickers in southern Puerto Rico;  and had
demonstrated a cynical disregard of the legal system, for example, by
displaying a "Say No to Drugs" sign outside his restaurant.  Pet. App.
26a-28a.  The court based those findings on petitioner's recorded
statements, the government's sentencing memorandum, and the
presentence report.  See Pet. App. 30a-31a.  The court expressly found
that those sources were "reliable." Pet. App. 25a-28a;  Gov't C.A. Br.
39;  6/9/89 Tr. 27-29.

   Based on its findings, and relying on United States v.
Diaz-Villafane, 874 F.2d 43, 49-52 (1st Cir.), cert. denied, 493 U.S.
862 (1989), the court departed upward from the indicated sentencing
range.  The court selected the appropriate range for departure by
treating petitioner's offense level as if it were 28 and his criminal
history category as if it were category VI.  The court then sentenced
petitioner to concurrent terms of 175 months' imprisonment on each of
Counts 5-8, to be followed by concurrent five-year periods of
supervised release on each count, and fined petitioner $25,000 on each
count.  Gov't C.A. Br. 39-40;  6/9/89 Tr. 29-30.

   3. The court of appeals affirmed.  Pet. App. 1a-57a.

   a. The court rejected petitioner's challenge to the lower court's
evidentiary rulings under Federal Rule of Evidence 404(b), holding
that the challenged rulings were either correct or constituted
harmless error.  First, the court held that Agent Toledo's testimony
about the underlying murder investigation was correctly admitted
because the prosecution needed to place damaging information about
Santiago before the jury on direct examination.  That testimony had no
prejudicial impact on petitioner, the court held, because it did not
implicate petitioner in the murders and because it was followed by a
cautionary instruction.  Pet. App. 7a-9a.  Second, the court held
that, although testimony about events occurring after the transactions
charged in the indictment should not have been admitted, the error was
harmless in light of the overwhelming evidence against petitioner.
Id. at 9a-13a.  Third, the court held that the admission of references
to counterfeit money, numbers racketeering, and prohibited sea turtle
meat, even if erroneous, created no risk of prejudice to petitioner.
Id. at 13a-14a.  Finally, the court held that the admission of
Santiago's reference to threats against the district attorney in
Guyama, although prejudicial, was harmless in light of the
overwhelming evidence against petitioner.  Id. at 14a-17a.

   Considering the cumulative effect of the challenged evidence, the
court found that "the government came very close to upsetting the
conviction for which it fought so hard." Pet. App. 18a.  The court
emphasized, however, that in light of "the overwhelming nature of (the
government's admissible) evidence," reversal was not required.  Ibid.

   b. The court observed that defense counsel did not object at trial
to the prosecutor's comments during closing arguments.  Pet. App. 21a.
 It accordingly applied a plain error standard, considering whether
any of the prosecutor's comments "undermine(d) the fundamental
fairness of the trial and contribute(d) to a miscarriage of justice."
Ibid.  (quoting United States v. Young, 470 U.S. 1, 16 (1985)).  The
court held that none of the comments amounted to plain error in light
of the strength of the government's case.  Pet. App. 20a-23a.

   c. The court upheld petitioner's sentence.  It rejected
petitioner's argument that the sentence was based on unreliable and
uncorroborated information.  Pet. App. 29a-31a.  In the court's view,
the district court properly relied on petitioner's recorded
statements, the government's sentencing memorandum, and the
presentence report.  Id. at 30a-31a.  The court of appeals further
held that petitioner's offense level was correctly increased pursuant
to Sentencing Guidelines Section 3B1.1(a) because petitioner was a
leader in a criminal activity involving five or more persons.  Pet.
App. 32a.  The presentence report, the court noted, "specifically
identified at least four other participants" in addition to
petitioner.  Ibid.

   The court also upheld the district court's upward departure in
sentencing, applying the analysis set forth in its decision in United
States v. Diaz-Villafane, 874 F.2d at 49.  The court held, first, that
the factors on which the district court relied were "sufficiently
unusual to justify a departure." Pet. App. 34a.  The court observed
that in prior decisions several of those factors -- i.e.,
"(petitioner's) importance as a drug supplier, his use of a minor in
his business, (and) the amount of money involved in that business" --
had been held to be proper grounds for departure.  Ibid.  Next, the
court held that "the information on which the (district court) based
(its) decision to depart was appropriate and reliable." Id. at 36a.
Finally, the court held that the degree of departure was reasonable.
Id.  at 37a.  The court observed that "(t)he sentencing court took
great pain in setting forth the reasons underlying its decision to
depart.  These reasons paint a portrait of (petitioner) as a lifetime
criminal offender, one who has shown no respect whatsoever for the law
or any other social institutions." Ibid.  The court rejected
petitioner's argument that in departing upward the district court was
required to "proceed sequentially through the (criminal history)
categories, considering each, until arriving at the one bearing the
most resemblance to the defendant's situation." Id. at 38a.  The court
observed that "(t)he (G)uidelines themselves do not require a
category-by-category evaluation." Id. at 39a.  Moreover, the court
reasoned that the cases imposing such a requirement, e.g., United
States v. Coe, 891 F.2d 405, 412-413 (2d Cir. 1989), and United States
v. Anderson, 886 F.2d 215, 216 (8th Cir. 1989), are distinguishable
because they concerned departures based solely on past criminal
conduct.  In contrast, "the departure in this case was not based
solely on (petitioner's) past criminal conduct, but on a myriad of
aggravating circumstances." Id. at 40a.

                               ARGUMENT

   1. Petitioner renews his challenge to the district court's
admission of evidence of criminal conduct other than that charged in
the indictment.  The court of appeals was correct in concluding that
some of the challenged evidence was properly admitted and that any
error in the admission of other evidence was harmless.

   The court of appeals properly upheld the admission of Agent
Toledo's testimony about Santiago's participation in several murders.
As the court of appeals recognized, that testimony "plainly served a
purpose other than solely to demonstrate (petitioner's) criminal
propensity." Pet. App. 8a.  By eliciting the damaging testimony sought
to blunt the impact of petitioner's inevitable cross-examination.
See, e.g., United States v. Del Purgatorio, 411 F.2d 84, 87 (2d Cir.
1969).  Moreover, the testimony had no prejudicial effect, because it
did not implicate petitioner in the murders;  it concerned only
Santiago.  Finally, the judge gave a cautionary instruction that
ensured against any prejudicial effect.

   The court of appeals was also correct in holding that references at
trial to counterfeit money, numbers racketeering, and illegal sea
turtle meat caused no prejudice to petitioner, and that any possible
prejudice was cured by the district court's cautionary instruction.
"(T)he possibly prejudicial effect of evidence can require exclusion
only in those instances where the trial judge believes that there is a
genuine risk that the emotions of the jury will be excited to
irrational behavior, and that this risk is disproportionate to the
probative value of the offered evidence." United States v. Dornhofer,
859 F.2d 1195, 1199 (4th Cir. 1988), cert. denied, 490 U.S. 1005
(1989) (citations omitted).  As the court of apeals stated, there was
"no genuine risk" that the jury would react irrationally to the
testimony in this case to numbers racketeering, counterfeiting, and
possessing a prohibited product.  Pet. App. 14a.

   The court of appeals correctly held that any error in the admission
of evidence about events occurring after the transactions charged in
the indictment and about threats against the district attorney in
Guayama was harmless.  The evidence of petitioner's guilt was, as the
court of appeals recognized, "overwhelming." Pet. App. 12a, 18a.  That
evidence included the recordings of petitioner's voice during four
cocaine sales, the cocaine that he sold on those four occasions, and
testimony by the purchaser of the cocaine as well as by the FBI agents
who witnessed the transactions.  In light of this evidence, the jury's
verdict could not have been influenced by the evidence that petitioner
challenges.

   For similar reasons, the court of appeals correctly held that the
prosecutor's comments during closing argument did not constitute plain
error.  The court properly inquired "whether the closing argument
affected the outcome of the case." Pet. App. 22a.  See, e.g., United
States v. Rodriguez-Estrada, 877 F.2d 153, 159 (1st Cir. 1989).  The
court recognized that such comments must be considered "not in sterile
isolation, but within the framework and context of the actual trial."
Ibid.; see United States v. Young, 470 U.S. 1, 16 (1985).  Where the
evidence of guilt presented by the government is overwhelming, even
ill-advised oratory by the prosecutor is unlikely to have an
prejudicial effect.  See United States v. Young, 470 U.S. at 16;
United States v. Doe, 860 F.2d 488, 495 (1st Cir. 1988), cert. denied,
490 U.S. 1049 (1989).  As the court of appeals concluded, viewed under
those principles, the prosecutor's comments in this case were not
plain error.  Pet. App. 23a.

   It was proper for the prosecutor, in marshalling the evidence for
the jury, to comment on the evidence in the record linking drugs with
violence.  /6/ It was likewise within the appropriate limits of
closing argument for him to refer to the "deadly trade of narcotic
trafficking" (Pet. App. 20a).  See, e.g., United States v. Musser, 856
F.2d 1484, 1485-1486 (11th Cir. 1988) (prosecutor's reference to drug
dealing as a "dirty, nasty, deadly business" well within bounds of
proper closing argument), cert. denied, 489 U.S. 1022 (1989).  And it
was proper for the prosecutor to respond in his rebuttal argument to
defense counsel's attack on Santiago and to counsel's characterization
of petitioner's restaurant as a legal business.  See United States v.
Brack, 747 F.2d 1142, 1152 (7th Cir. 1984), cert. denied, 469 U.S.
1216 (1985).  In any event, petitioner did not object to the
prosecutor's remarks at trial, and any error during closing argument
was not so grievously prejudicial as to result in a miscarriage of
justice of the sort required to establish plain error.  See United
States v. Young, 470 U.S. at 11-14.

   In sum, this case does not present "a systemic abuse of defendant's
rights" (Pet. 20) requiring this Court's correction.  The district
court's "conscientious effort to control any damage flowing from
potentially unfairly prejudicial testimony" (Pet. App. 19a) and the
court of appeals' thorough review of petitioner's conviction ensured
that petitioner's trial was fair, and that any error that may have
occurred during the trial did not affect petitioner's substantial
rights.  See Fed. R. Crim. P. 52(a);  28 U.S.C. 2111 (federal
appellate courts should "give judgment * * * without regard to errors
or defects which do not affect substantial rights of the parties");
see also Bruton v. United States, 391 U.S. 123, 135 (1968) ("A
defendant is entitled to a fair trial, but not a perfect one," quoting
Lutwak v. United States, 344 U.S. 604, 619 (1953)).

   2. Petitioner further contends (Pet. 20-30) that the district court
erred in departing upward from his criminal history category under
Sentencing Guidelines Section 4A1.3 and in adjusting his base offense
level upward under Sentencing Guidelines Section 3B1.1(a).  The court
of appeals properly rejected those contentions.

   a. Petitioner argues (Pet. 22-23) that, in departing upward from
his criminal history category, the district court was required to move
sequentially, asking whether each higher category adequately reflected
petitioner's past conduct, and moving to the next higher category only
after answering that question in the negative.  The Sentencing
Guidelines require no such mechanistic procedure.  Instead, Guidelines
Section 4A1.3 directs the court to "use, as a reference, the guideline
range for a defendant with a higher or lower criminal history
category, as applicable." The district court complied with that
directive here.  The court found category VI to be the criminal
history category that most accurately reflected petitioner's criminal
background and propensities, and the court therefore sentenced
petitioner as if his criminal history category were VI.  The
Guidelines require no more.  /7/

   Contrary to petitioner's contentions (Pet. 23, 25), the district
court did not "unaccountably" arrive at a higher criminal history
category, nor was the degree of the departure "wholly unreasonable."
As the court of appeals stated, the district court "took great pain in
setting forth the reasons underlying its decision to depart." Pet.
App. 37a.  Those reasons included petitioner's implication in the
commission of two murders and in the planning of a third murder, his
insurance fraud, his use of a minor in his drug business, his
importance as a drug trafficker in Puerto Rico, and his disregard for
the criminal justice system, as evidenced by his commission of
offenses while on probation and by the hypocrisy of his posture as a
succesful businessman urging others to "Say No to Drugs." Pet. App.
17a, 20a-29a.  In these circumstances, it was reasonble for the court
to depart to the extent that it did in this case.  See Diaz-Villafane,
874 F.2d at 50-51;  see also United States v. Gardner, 905 F.2d 1432,
1437 (10th Cir.), cert. denied, 111 S. Ct. 202 (1990);  United States
v. Franklin, 902 F.2d 501, 507-508 (7th Cir.), cert. denied, 111 S.
Ct. 274 (1990);  United States v. Anders, 899 F.2d 570, 579 (6th
Cir.), cert. denied, 111 S. Ct. 532 (1990).  /8/

   b. There is no merit to petitioner's contention (Pet. 26-30) that
the district court erred when it increased his offense level under
Sentencing Guidelines Section 3B1.1(a) based on his leadership in a
criminal activity that involved five or more participants or was
"otherwise extensive."

   At the outset, petitioner is mistaken when he asserts (Pet. 26-27)
that ther was no evidence to support the adjustment of his offense
level.  As the court of appeals noted (Pet. App. 32a), the presentence
report identified at least four other participants in his drug
trafficking activities, namely, his three co-conspirators in a
companion case (see note 1, supra) and a minor whom petitioner used as
a messenger in his drug trafficking business.  Since petitioner did
not object to the presentence report in this respect, the district
court properly relied on it.  See Fed. R. Crim. P. 32(c)(3)(D);
United States v. Fox, 889 F.2d 357, 359 (1st Cir. 1989).  Moreover,
other evidence -- for example, petitioner's own recorded statements
portraying himself as a drug kingpin -- justified enhancement of his
offense level based on leadership in criminal activity that was
"otherwise extensive" (Guidelines Section 3B1.1(a)).

   Petitioner is also mistaken in asserting (Pet. 28) that, in
increasing petitioner's base offense level under Guidelines Section
3B1.1(a), the district court could not consider his direction of
co-conspirators in a different case involving subsequent events.
Guidelines Section 1B1.3(a)(2) directs sentencing courts in determinig
the offense level to consider "all such acts and omissions that were
part of the same course of conduct or common scheme or plan as the
offense of convicion," when the offense of conviction is subject to
grouping under Guidelines Section 3D1.2(d).  The drug trafficking
offenses of which petitioner was convicted are subject to grouping
under Guidelines Section 3D1.2(d).  See Guidelines Section 2D1.1.
Thus, the district court was entitled to consider the conspiracy that
petitioner directed, because it was part of the same course of conduct
as the drug trafficking offenses of which he was convicted.  /9/

   Petitioner next asserts (Pet. 29a-30a) that the court of appeals
had no basis for concluding that the minor used by petitioner as a
messenger in his drug trafficking business and identified as such in
the presentence report was criminally culpable.  Petitioner did not
raise this point in the court of appeals, and he therefore cannot
pursue it now.  United States v. Lovasco, 431 U.S. 783, 788-789 n.7
(1977).  In any event, in the absence of objection by petitioner (see
Fed. R. Crim. P. 32(c)(3)(D)), the district court was entitled to
conclude from the presentence report's description of the minor's
activities that the minor was criminally culpable.  See United States
v. Fox, 889 F.2d at 359;  see also 18 U.S.C. 5031 (defining "juvenile"
as person who has not yet reached eighteenth birthday and "juvenile
delinquency" as a violation of law committed by such a person that
would have been a crime if committed by adult).  /10/

   There is no merit to petitioner's final contention (Pet. 30) that
the district court "may" have based the sentence on "unreliable,
uncorroborated hearsay." As explained above, the district court relied
on petitioner's own recorded statements, the government's sentencing
memorandum, and the presentence report.  See Pet. App. 30a.  As the
court of appeals observed (ibid.), petitioner challenged the
presentence report only on the ground that it did not recognize his
alleged acceptance of responsibility, and the sentencing memorandum
"was based on official sources (the recordings played at trial,
witness interviews, and statements by FBI agents, Puerto Rico police
officers, and confidential sources)." Petitioner provides no reason
for setting aside the lower courts' conclusions that those sources
were reliable.  Pet. App. 31a;  see also Guidelines Section 4A1.3.
/11/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   THOMAS M. GANNON

      Attorney

   JUNE 1991

   /1/ In a separate indictment returned the same day as the instant
indictment, petitioner was charged with conspiring to possess cocaine
with intent to distribute it, in violation of 21 U.S.C. 846, and with
six counts of possessing cocaine with intent to distribute it, in
violation of 21 U.S.C. 841(a)(1).  After his conviction in the instant
case, petitioner pleaded guilty to the conspiracy count of the
separate indictment, and the government agreed to dismissal of the
remaining counts.  The district court sentenced petitioner to a term
of 33 months' imprisonment, to be served consecutively to the sentence
imposed in the instant case, and to a five-year period of supervised
release, to be served concurrently with the periods of special parole
and supervised release imposed in the instant case.  The district
court also fined petitioner $25,000.  Gov't C.A. Br. 2 & n.1.  The
court of appeals affirmed.  Pet. App. 53a-57a.

   /2/ Santiago had met petitioner in 1986 through one of Santiago's
associates in the Martinez Torres gang.  At that meeting, Santiago's
associates told petitioner that the Martinez Torres brothers had put
out a contract for petitioner's murder.  Gov't C.A. Br. 4.

   /3/ Sentencing Guidelines Section 3B1.1(a) directs the sentencing
court to increase the offense level by four points "(i)f the defendant
was an organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive."

   /4/ In determining petitioner's criminal history category, the
court took into account that petitioner had previously been convicted
of a narcotics violation in Puerto Rico and was on probation at the
time of the instant offenses.  Gov't C.A. Br. 37 n.18;  6/9/89 Tr. 20.
 See Sentencing Guidelines Section 4A1.1.

   /5/ The court noted that petitioner's criminal history, which began
in 1967, included mainland charges for theft, conspiracy, burglary,
and possession and delivery of controlled substances, and 1987 local
and 1988 federal convictions in Puerto Rico for narcotics violations.
According to the court, petitioner "had a life of narco-trafficking
and other violations." Gov't C.A. Br. 37-38;  6/9/89 Tr. 17.

   /6/ See, e.g., 3 Tr. 82-88, where on cross-examination defense
counsel led Santiago through a detailed recital of the drug-related
murders in which he participated.

   /7/ As the court of appeals observed (Pet. App. 40a), the district
court's departure was not based solely on petitioner's past criminal
conduct, but on a "myriad of other aggravating circumstances." That
fact distinguishes the departure in this case from those involved in
cases holding that a sentencing court must move sequentially through
criminal history categories, e.g., United States v. Jones, 905 F.2d
867, 870 (5th Cir. 1990);  United States v. Coe, 891 F.2d 405, 412-413
(2d Cir. 1989);  United States v. Anderson, 886 F.2d 215, 216 (8th
Cir. 1989).  The "tension" or "inconsistency" acknowledged by the
court of appeals in Jones, 905 F.2d at 869, and noted by petitioner
(Pet. 24) concerns the reasonableness of the extent of departures, not
the sequential movement through criminal history categories.  Compare
United States v. Lopez, 871 F.2d 513 (5th Cir. 1989) (vacating
sentence 2.4 times greater than guideline maximum) with United States
v. Harvey, 897 F.2d 1300 (5th Cir.) (upholding sentence 2.5 times
greater than guideline maximum), cert. denied, 111 S. Ct. 568 (1990).
In any event, any such "tension" exists wholly within the Fifth
Cricuit, and is appropriately resolved by that court.  See Wisniewski
v. United States, 353 U.S. 901 (1957).

   /8/ Petitioner's reliance (Pet. 26) on United States v. Schmude,
901 F.2d 555, 559-560 (7th Cir. 1990), is misplaced.  There, the
magnitude of an upward departure was held unreasonable because the
defendant was sentenced to more than double the maximum guideline
range when only one factor, the repeat nature of the offense,
warranted departure.  In the present case, as the court of appeals
noted (Pet. App. 40a), a "myriad of * * * aggravating circumstances"
justified the departure.

   /9/ The court was also entitled to rely on the presentence report
for information regarding that conspiracy, since, as noted, petitioner
did not obect to the report in this respect.  See United States v.
Fox, 889 F.2d at 359;  Fed. R. Crim. P. 32(c)(3)(D).

   /10/ Because the presentence report made clear that the minor used
as a drug messenger was criminally culpable, cases involving
"unknowing outsiders," e.g., United States v. DeCicco, 899 F.2d 1531,
1535-1537 (7th Cir. 1990), and United States v. Anderson, 895 F.2d
641, 645-646, reh'g granted, 911 F.2d 380 (9th Cir. 1990);  see also
United States v. Carroll, 893 F.2d 1502, 1509 (6th Cir. 1990)
(involving supervision of a government agent), are plainly inapposite.

   /11/ Petitioner's reliance (Pet. 30) on United States v. Missick,
875 F.2d 1294, 1301-1302 (7th Cir. 1989), is misplaced.  The departure
found improper in Missick was based on the possession of firearms by
persons to whom the defendant sold drugs.  In the present case, the
adjustment in petitioner's offense level was based on his own course
of drug trafficking conduct.