United States Court of Appeals

For the First Circuit

No. 01-2614

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT CYR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

Peter Charles Horstmann, with whom Fishman, Ankner &

Horstmann, LLP was on brief for appellant.

Dickens Mathieu, Assistant U.S. Attorney, with whom Michael J.

Sullivan, United States Attorney, was on brief for appellee. 

July 29, 2003
-2-

LIPEZ, Circuit Judge. This sentencing appeal requires us

to address, in part, the interaction between the "related sentence"

and "relevant conduct" provisions in the United States Sentencing

Guidelines ("Guidelines"), both of which may limit the impact of a

defendant's prior criminal record on the calculation of his

criminal history category for an instant offense. 

I.

On December 7, 2000, a federal grand jury returned a 27-

count superseding indictment charging Robert Cyr and numerous other

co-defendants with conspiracy to possess heroin with intent to

distribute. Although the indictment included a host of additional

charges against Cyr alone, the defendant pled guilty to only the

drug conspiracy count (Count One), and to conspiracy to launder

money (Count Twenty-Seven), pursuant to a plea agreement reached on

February 23, 2001. On October 26, 2001, the district court

sentenced Cyr to concurrent prison terms of 235 months on Count One

and 120 months on Count Twenty-Seven, to be followed by five years

of supervised release. 

Cyr raises two challenges to his sentence on appeal.

First, he argues that the district court erred in computing his

base offense level using the drug quantity set forth in the presentence report (PSR), rather than the lower amount agreed to by

the government and memorialized in the plea agreement. Second, the

defendant claims that the district court erred in concluding that
-3-

two prior state convictions for distributing Xanax merited three

criminal history points under the Guidelines for purposes of

calculating the defendant's criminal history category. 

We find no merit in Cyr's first claim of error. We

further conclude that while the district court erroneously

characterized the defendant's prior state convictions for

distribution of heroin as "unrelated" to his prior state

convictions for distribution of Xanax, its calculation of Cyr's

criminal history category was nonetheless correct. 

II. 

In late summer/early fall of 1998, the Drug Enforcement

Administration (DEA) launched an investigation of heroin

trafficking in Lawrence, Massachusetts. The investigation

uncovered a drug ring run by John Damien, a former substance abuse

counselor. Cyr first purchased heroin from Damien in 1995, and was

arrested twice in 1996 while working as his distributor. On each

occasion, the defendant was in possession of both heroin and Xanax.

After the first arrest, in July 1996, Cyr was convicted on one

count of possession with intent to distribute heroin and one count

of possession with intent to distribute Xanax ("the July

convictions"). For both offenses he received a suspended sentence

of nineteen months imprisonment and was ordered to serve eighteen

months probation. After the second arrest in October 1996, Cyr was

again convicted of the same two offenses ("the October
1Section 4A1.1 directs courts to calculate a defendant's

criminal history by assigning points for each "prior sentence" (the

exact number of points assigned varies according to the nature of

the particular sentence). However, Application Note 1 to § 4A1.2

specifies that

-4-

convictions"). This time, Cyr was sentenced to two years of

imprisonment, with 120 days served and the balance suspended. The

court also sentenced the defendant to a period of probation ending

February 10, 1999. 

Cyr was released from prison on February 24, 1997. While

still on probation, the defendant rejoined Damien's heroin

organization and became his "right hand man." In this supervisory

role, he was entrusted with such responsibilities as weighing and

packaging the heroin, operating a "stash house," laundering the

drug proceeds, and running the drug organization while Damien was

away on vacation. Apprehended again in May 1999, Cyr agreed to

plead guilty to the drug conspiracy and money laundering counts in

the superseding indictment. Under the terms of the plea agreement,

the parties "agree[d] to take the position that Defendant is

responsible for not less than three (3) and not more that ten (10)

kilograms of heroin during the period of the conspiracy." The plea

agreement also memorialized a stipulation between Cyr and the

government regarding his July and October drug convictions: "The

parties agree that Defendant's convictions in the [1996] cases are

part of the res gestae of this case pursuant [to] U.S.S.G. § 4A1.2,

Application Note 3."1 
"Prior Sentence" means a sentence imposed prior to

sentencing on the instant offense, other than a sentence

for conduct that is part of the instant offense . . . .

Conduct that is part of the instant offense means conduct

that is relevant conduct to the instant offense under the

provisions of § 1B1.3 (Relevant Conduct).

(emphasis added). Under this application note, a prior sentence

deemed to be relevant conduct (i.e., part of the res gestae of the

instant offense) is disregarded for purposes of calculating the

defendant's criminal history. Accordingly, Application Note 1

seems more pertinent to the parties' stipulation than Application

Note 3, which describes the circumstances under which prior

sentences are "related" within the meaning of § 4A1.2(a)(2), and

hence consolidated for purposes of calculating a defendant's

criminal history.

2Under U.S.S.G. § 4B1.1, a defendant with "two prior felony

convictions of . . . a controlled substance offense" qualifies as

-5-

The PSR prepared for Cyr's sentencing took a contrary

position with respect to both drug quantity and criminal history.

In determining the drug amount attributable to Cyr, the PSR noted

that Damien had admitted responsibility for 10-30 kilograms of

heroin in his own plea agreement with the government. Reiterating

that Cyr had acted as Damien's right hand man over the course of

the conspiracy, the PSR reasoned that "the amount of heroin

possessed and distributed by John Damien was reasonably foreseeable

to defendant Cyr." The PSR also disregarded the parties'

stipulation covering Cyr's July and October drug convictions,

finding that "[t]he career offender provisions of U.S.S.G. § 4B1.1

are applicable in this case [because] the defendant has two prior

convictions of either a crime of violence, or an applicable

controlled substance violation."2 
a career offender. Once a defendant is classified as a career

criminal, he is automatically assigned to the highest criminal

history category (VI). Hence a career criminal designation under

§ 4B1.1 supersedes the procedure for calculating criminal history

delineated in § 4A1.1.

3The breakdown for these three points under the relevant

Guidelines is discussed at length in section III.B, infra.

-6-

The district court's sentencing determination

incorporated elements of both the plea agreement and the PSR.

Initially, the court agreed with the probation office that Cyr was

responsible for a drug quantity in the 10-30 kilogram category.

However, the court declined to classify Cyr's July and October

heroin convictions as predicate offenses for purposes of applying

the career offender guideline, reasoning that the PSR "explicitly

treats the prior offenses as part of Cyr's participation in the

Damien conspiracy." Having determined that Cyr did not qualify as

a career offender, the court severed the July/October heroin

convictions from the July/October Xanax convictions, and ruled that

only the former could be considered uncountable "relevant conduct"

for purposes of applying § 4A1.1. See supra note 1. The court

viewed the Xanax convictions as independent offenses unrelated to

the drug conspiracy charge, and accordingly assigned Cyr three

criminal history points for the Xanax convictions.3 As a result,

Cyr received a total of six criminal history points, placing him in

criminal history category III. On appeal, he argues that the court
-7-

should only have given him three criminal history points, and

correspondingly assigned him to criminal history category II. 

III.

A. Drug Quantity

In challenging the district court's decision to attribute

to him a drug quantity of 10-30 kilograms, Cyr claims that the

district court erred by relying on portions of the PSR objected to

by the defense without compelling the government to proffer

additional evidence to bolster the disputed material. Cyr

emphasizes that the Government stipulated to a drug quantity of 3-

10 kilograms, and joined the defendant's objection to the PSR's

higher drug quantity determination. 

"Generally, a PSR bears sufficient indicia of reliability

to permit the district court to rely on it at sentencing." United

States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001). The defendant

is free to challenge any assertions in the PSR with countervailing

evidence or proffers, in which case the district court is obliged

to resolve any genuine and material dispute on the merits. But if

the defendant's objections to the PSR are merely rhetorical and

unsupported by countervailing proof, the district court is entitled

to rely on the facts in the PSR. See United States v. Grant, 114

F.3d 323, 328 (1st Cir. 1997) ("[A]lthough [defendant] objected to

certain facts in the PSR . . . [he] did not provide the sentencing

court with evidence to rebut the factual assertions . . . .
4Cyr briefly challenges the district court's use of the

quantity pled to by John Damien as a benchmark for calculating his

own drug quantity. He questions the reliability of Damien's plea

agreement, arguing that "Damien potentially faced a sentence of

life in prison if he did not accept the plea agreement from the

Government, [and was] thereby induced by an 'overwhelmingly

powerful' deal that burdened his right to trial by jury." The

record indicates, however, that the district court's drug quantity

-8-

Consequently, the court was justified in relying on the contested

facts.").

The district court's drug quantity determination was

grounded in a substantial body of probative evidence gleaned both

from the PSR and the plea agreement. As the court noted, the

defendant conceded in the plea agreement that his managerial role

in the conspiracy warranted a three-level sentencing increase

pursuant to U.S.S.G. § 3B1.1(c). Having acknowledged a supervisory

role, it was reasonable for the district court to attribute to him

the quantity of drugs that Damien, the ringleader of the

conspiracy, admitted to trafficking in his own plea agreement. As

the court observed:

Damien, the leader of the conspiracy,

acknowledged in his own plea agreement that he

should be held responsible for 10 to 30

kilograms. Damien's acknowledgment is not

binding on Cyr, of course, but it is evidence

that tends to corroborate the estimates that

are based on Cyr's own statements. Further

corroboration comes from another conspirator,

Jose Cordero, who estimated that Damien

purchased more than 10 kilograms from one

particular supplier. There is no information

in the statement of relevant offense conduct

that tends to minimize what was foreseeable to

Cyr.4
determination did not rest exclusively on Damien's plea agreement,

but was corroborated by 1) statements from co-conspirator Jose

Cordero, and 2) Cyr's own estimates of the drug quantity for which

he was responsible.

-9-

Perhaps the most damning evidence of drug quantity was

the defendant's own admissions. Cyr's plea agreement indicates

that he conceded responsibility for 3-10 kilograms during the

conspiratorial period alleged in Count 1 of the indictment --

beginning "at least by or about August 1, 1997, and continuing to

on or about May 20, 1999." Significantly, however, the sentencing

court decided to push back the effective beginning date of the

conspiracy to July 1996. This recalibration of the conspiratorial

period conferred a significant benefit on Cyr because it permitted

the district court to characterize his July 1996 and October 1996

heroin convictions as "relevant conduct," and therefore to

disregard them for purposes of applying the career offender

guideline and calculating his criminal history. See U.S.S.G. §

4A1.2, cmt. n.1. There was, however, a limited downside to this

arrangement; namely, that Cyr's drug quantity calculation would now

encapsulate an extra year (from July 1996 to August 1, 1997) over

and above the conspiratorial period denoted in the indictment. The

district court ultimately determined that this year-long extension

of the conspiracy was significant for purposes of calculating Cyr's

drug quantity: "If the quantitative estimates that Cyr made for

one year are extrapolated to cover a conspiracy spanning two to
5Cyr insinuates at several points in his brief that the

district court erred in relying on drug quantity estimates from

Damien and Cordero without holding a separate evidentiary hearing

to assess their reliability. However, as we observed in United

States v. Tardiff, 969 F.2d 1283 (1st Cir. 1992):

It is clear that a defendant is not automatically

entitled to a full-blown evidentiary hearing at the time

of sentencing. It is just as clear that, at a bare

minimum, he who expects to receive a discretionary

dispensation must first seek it. Thus, the failure to

ask the district court to convene an evidentiary hearing

ordinarily spells defeat for a contention that one should

have been held. 

Id. at 1286. Cyr's failure to seek an evidentiary hearing below

dooms any argument on appeal that the district court abused its

-10-

three years, perhaps more, then it was foreseeable to Cyr that the

conspiracy involved amounts in the 10 to 30 kilogram range." 

We review a district court's calculation of drug quantity

for clear error. United States v. Santos Batista, 239 F.3d 16, 21

(1st Cir. 2001). "[W]here there is more than one plausible view of

the circumstances, the sentencing court's choice among supportable

alternatives cannot be clearly erroneous." United States v. Ruiz,

905 F.2d 499, 508 (1st Cir. 1990). In the final analysis, Cyr's

superficial challenges to the PSR's drug quantity determination

fail to counter (or even address) the formidable array of facts and

sources marshaled by the district court for its drug quantity

determination. We conclude, therefore, that it was entirely proper

for the district court to rely on the facts in the PSR while

calculating Cyr's drug quantity, and decline to vacate Cyr's

sentence on this ground.5
discretion in foregoing such a hearing during his sentencing. 

-11-

B. Criminal History

The district court adopted the PSR's recommendation that

Cyr receive one criminal history point for each of three prior

convictions unrelated to the subject matter of this appeal, noting

that "[t]he PSR uncontroversially assigned one criminal history

point for the prior convictions in ¶¶ 91, 93, and 98." These

paragraphs in the PSR refer, respectively, to 1) a conviction for

possession of heroin on October 16, 1989, 2) a conviction for

shoplifting on April 12, 1995, and 3) a conviction for shoplifting

and filing a false report to law enforcement on December 22, 1998.

Cyr does not challenge these points on appeal. The court then

assigned Cyr two points pursuant to U.S.S.G. § 4A1.1(d) for

committing the instant offense while serving a term of probation

for his October Xanax conviction. Finally, the court intended to

assign the defendant another two points under U.S.S.G. § 4A1.1(c).

This section directs courts to assign one criminal history point

for each prior sentence of less than sixty days. However, the

total number of points that can be assigned under § 4A1.1(c) is

capped at four. The district court had already counted three prior

sentences under this section by the time it reached Cyr's Xanax

sentences. Accordingly, it could only assign a total of one point
-12-

under this section for both Xanax offenses. Ultimately, the point

breakdown for Cyr's criminal history category was as follows:

Criminal History Points

 3 Three prior convictions of less than 60 days

[U.S.S.G. § 4A1.1(c)]

(Xanax-related) +2 Commission of the instant offense while

serving probation from the October Xanax

conviction [U.S.S.G. § 4A1.1(d)] 

(Xanax-related) +1 Prior Xanax convictions of less than 60 days

[U.S.S.G. § 4A1.1(c)]

Total = 6

On appeal, Cyr asserts that the district court

erroneously assigned him three criminal history points for his

prior Xanax convictions, resulting in a criminal history category

of III. The court's decision to assign these points for Cyr's

Xanax sentences reflected its understanding that the state Xanax

convictions, unlike the state heroin convictions, were "irrelevant"

to the instant heroin conspiracy. See supra note 1. Cyr responds

with the creative theory that if his 1996 heroin convictions were

uncountable as criminal history by virtue of being "relevant

conduct" to the instant offense, other prior sentences "related" to

those heroin convictions must be considered relevant conduct as

well. To restate his proposition more broadly, a court confronted

with a group of prior related sentences must designate them

relevant or irrelevant conduct as a group. If Cyr is correct, his

Xanax convictions are uncountable under §4A1.2, and therefore
-13-

provide no basis for either a two-point assessment under § 4A1.1(d)

or a one-point assessment under § 4A1.1(c). 

In its sentencing memorandum, the court attempted to

reconcile its assignment of criminal history points for the Xanax

sentences with its earlier determination that Cyr's contemporaneous

July/October heroin sentences were uncountable relevant conduct: 

The question thus arises whether the Xanax

convictions, countable if they stood alone,

should be regarded as uncountable because they

were imposed concurrently with uncountable

heroin offenses. Cyr argued that the

convictions that occurred the same day (as did

the offenses) ought to be considered "related"

to each other, see U.S.S.G. § 4A1.2(a)(2) and

n.3, and that therefore, if the heroin

convictions are treated as uncountable, the

"related" Xanax convictions ought also be

considered uncountable.

I conclude that the prior Xanax convictions

should not be deemed "related," despite their

apparent fit within the explanation set out in

application note 3 to § 4A1.2(a)(2), because

in this case the heroin offenses were part of

the relevant conduct for the instant crime of

conviction -- conspiracy to distribute heroin

-- while the Xanax convictions were not. 

This conclusion -- that heroin and Xanax offenses

committed, charged, and resolved contemporaneously are not

"related" to each other -- cannot be squared with the language of

Application Note 3 to § 4A1.2: "[P]rior sentences are considered

related if they resulted from offenses that (A) occurred on the

same occasion, (B) were part of a single common scheme or plan, or
-14-

(C) were consolidated for trial or sentencing." U.S.S.G. § 4A1.2,

cmt. n.3. 

However, even if Cyr's July heroin conviction is

"related" to his July Xanax conviction (and Cyr's two October

convictions are similarly related), it does not follow that all

four prior sentences were necessarily for conduct relevant to the

instant offense. Under the Guidelines, the significance of a

"relatedness" finding is simply that "[p]rior sentences imposed in

related case are to be treated as one sentence" for purposes of

calculating the defendant's criminal history. U.S.S.G. §

4A1.2(a)(2). 

Cyr points to no Guideline language or case law that

compels a court to brand all prior related sentences "relevant

conduct" if a single sentence in the group is deemed to encompass

such conduct. Applying the broad definition of "relatedness" in

Application Note 3 to § 4A1.2, it is easy to imagine that two

offenses "consolidated for trial or sentencing" may govern conduct

that is sufficiently dissimilar in nature or scope as to preclude

a uniform "relevant conduct" determination. Under the Guidelines,

the glue that binds prior sentences together under Application Note

3 may be different from the substantive similarities that render

prior conduct "relevant" to an instant offense. In this case,

Cyr's July Xanax and heroin sentences are related because (1) the

offenses occurred on the same occasion, and (2) the cases were
-15-

consolidated for trial. The same logic applies to the October

sentences. But it was not improper for the district court to

nonetheless conclude that only the prior heroin offenses were

relevant to the instant heroin conspiracy, while the prior Xanax

offenses were not. Accordingly, we find no error in the district

court's assignment of three criminal history points for Cyr's prior

Xanax sentences. 

Affirmed.