2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-17-2012

USA v. Antoine Alicea

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3554

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Antoine Alicea" (2012). 2012 Decisions. Paper 438.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/438
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-3554

_____________

UNITED STATES OF AMERICA

v.

ANTOINE ALICEA, a/k/a Twan a/k/a Twiz a/k/aTwizzy

Antoine Alicea, 

 Appellant

_____________

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-07-cr-00737-015

District Judge: The Honorable Eduardo C. Robreno

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 13, 2012

Before: SMITH and CHAGARES, Circuit Judges

ROSENTHAL, District Judge*

(Filed: September 17, 2012)

 

_____________________

 

* The Honorable Lee H. Rosenthal, District Judge for the United States District Court for 

the Southern District of Texas, sitting by designation.
2

 OPINION

_____________________ 

SMITH, Circuit Judge.

A jury convicted Antoine Alicea of conspiracy to distribute cocaine, and the 

District Court sentenced him to 292 months imprisonment. Alicea appeals his 

conviction and sentence. We will affirm.

I.

On August 6, 2008, Alicea was indicted and charged with, inter alia,

conspiracy to distribute 5 kilograms or more of cocaine and 50 grams or more of 

crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) (“Count 

1”).1 The government alleged that Kareem Smith was the head of a conspiracy to 

distribute cocaine and crack cocaine in parts of Philadelphia and Cecil County, 

Maryland from November 2002 through September 2007 (referred to in the 

Indictment as the Smith Crack Cocaine Gang or “SCCG”). It further alleged that 

Alicea was a co-conspirator whose role was to supply cocaine to the SCCG.

On June 2, 2009, following a jury trial, Alicea was convicted on Count 1. 

On June 9, 2009, Alicea filed a motion for judgment of acquittal pursuant to 

 

1 Alicea was also charged with: possession with intent to distribute cocaine, in violation 

of 21 U.S.C. § 841(a)(1) (Count 2); and possession of a firearm in furtherance of a drug 

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). Because the jury 

found him not guilty of these charges, they are not at issue on appeal.

 
3

Federal Rule of Criminal Procedure 29(c). On March 10, 2010, the District Court 

denied Alicea’s motion.

On June 28, 2010, the District Court held a hearing as to the quantity of 

drugs that should be attributed to Alicea and his co-defendants at sentencing. On 

July 16, 2010, the District Court issued an order as to the drug weight attribution 

and established the applicable sentencing guidelines for Alicea and his codefendants.

On August 19, 2010, the District Court imposed a sentence on Alicea of 292 

months imprisonment to be followed by a 5-year period of supervised release, 

along with a $1,000 fine and a $100 special assessment.

Alicea appealed his conviction and sentence.2

 

2

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 
4

II.

A.

Alicea argues that, although he was a drug dealer and may have sold cocaine 

to members of the SCCG on a periodic basis, those sales were made as part of a 

standard buyer-seller relationship, and thus, the evidence was insufficient to prove 

that he joined the SCCG.

We review a challenge to the denial of a motion for judgment of acquittal de 

novo, viewing the evidence in the light most favorable to the government. United 

States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006). We must sustain the verdict if 

“any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). It is 

immaterial that the evidence also permits a “less sinister conclusion” because “the 

evidence need not be inconsistent with every conclusion save that of guilt.” United

States v. Brodie, 403 F.3d 123, 134 (3d Cir. 2005) (citation and quotation marks 

omitted). In sum, the verdict must stand unless the insufficiency of the evidence is 

clear. United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (citation and 

quotation marks omitted).

The elements of a conspiracy charge under § 846 are: (1) a unity of purpose

between the alleged conspirators; (2) an intent to achieve a common goal; and (3) 

an agreement to work together toward that goal. See United States v. Iglesias, 535 
5

F.3d 150, 156 (3d Cir. 2008).

In United States v. Gibbs, 190 F.3d 188, 194 (3d Cir. 1999), we addressed 

the issue of the scope of conspiracy liability for a defendant whose sole 

involvement with the conspiracy consisted of buying drugs from another member 

of the conspiracy and reselling those drugs to others. “It is well-settled that a 

simple buyer-seller relationship, without any prior or contemporaneous 

understanding beyond the sales agreement itself, is insufficient to establish that the 

buyer was a member of the seller’s conspiracy.” Id. at 197. However, even an 

occasional supplier or buyer for redistribution could be shown to be a member of 

the conspiracy by evidence, direct or inferential, of knowledge that he was part of a 

larger operation. See id. at 198. Where the only evidence linking the seller or 

buyer to the conspiracy is the transactions themselves, courts look to the 

surrounding circumstances to determine whether the defendant was a mere seller or 

buyer that cannot be held to be a conspirator or whether he has “knowledge of the 

conspiracy to the extent that his drug [sales] or purchases are circumstantial 

evidence of his intent to join that conspiracy.” Id. When making this 

determination, courts generally consider the following factors: how long the 

defendant was affiliated with the conspiracy; whether there was an established 

method of payment; the extent to which transactions were standardized; whether 

the actions of the defendant and members of the conspiracy demonstrated a level of
6

mutual trust; whether the transactions involved a large amount of drugs; and 

whether the buyer purchased the drugs on credit. Id. at 199.

A reasonable jury could conclude that the evidence, viewed in the light most 

favorable to the government, sufficiently demonstrates Alicea’s participation in the 

SCCG. This evidence includes that: Smith and other members of the SCCG 

regularly contacted Alicea during a five-year period, during which time Alicea

supplied large amounts of cocaine to the group (Supp. App. 535-38, 540, 558); 

members of the SCCG informed Alicea of their operational plans, including that 

that they could sell crack in Maryland for four times the price it was in 

Philadelphia (Supp. App. 574-75, 592-93); Alicea supplied Smith with cocaine on 

credit (Supp. App. 544-45); and Smith gave Alicea a firearm as partial payment for 

a drug transaction (Supp. App. 290-91, 341, 763-64). Further, Smith testified that 

there was no one-for-one accounting of cash for cocaine in any single transaction, 

but rather a loose, continuous flow of cocaine and money, which demonstrates a 

high level of trust between Alicea and the members of the SCCG. See Supp. App. 
7

544-45, 555.3 Based on this evidence, a reasonable jury could infer that Alicea 

was a member of the SCCG. 

Accordingly, the District Court did not err in denying Alicea’s Rule 29 

motion for judgment of acquittal. 

B.

We review the District Court’s determination as to the amount of drugs 

attributed to a defendant for clear error. United States v. Yeung, 241 F.3d 321, 322 

(3d Cir. 2001). 

When sentencing co-conspirators, the sentencing court may consider “all 

reasonably foreseeable acts and omissions of others in furtherance of the jointly 

undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B) (2009) (Alicea was 

sentenced under the 2009 version of the Guidelines Manual). As to offenses 

involving controlled substances, a “defendant is accountable for all quantities of 

contraband with which he was directly involved and, in the case of a jointly 

undertaken criminal activity, all reasonably foreseeable quantities of contraband 

that were within the scope of the criminal activity that he jointly undertook.” See 

 

3 Alicea argues that he, like the defendant in United States v. Pressler, 256 F.3d 144 (3d 

Cir. 2001), never agreed to work with either his seller or his buyers to achieve a common 

goal or advance a common interest. However, Pressler is inapposite for primarily two 

reasons. First, the issue in Pressler was whether a conspiracy existed at all, not whether a 

particular individual was a member of a documented conspiracy. See Id. at 147, 151 

(distinguishing Gibbs because the issue in Pressler was whether a conspiracy existed). 

Second, the evidence demonstrates that Alicea, unlike the defendant in Pressler, was so 
8

id. cmt. n.2. We have held that, under § 1B1.3, a defendant can be responsible for 

the amount of drugs distributed by his co-conspirators only if the drugs distributed: 

(1) were in furtherance of the conspiracy; (2) were within the scope of the 

defendant’s agreement; and (3) were reasonably foreseeable in connection with the 

criminal activity that the defendant agreed to undertake. See United States v. 

Price, 13 F.3d 711, 732 (3d Cir. 1994). When determining the amount of drugs 

attributable to a particular defendant, the sentencing court must conduct a 

“searching and individualized inquiry,” United States v. Collado, 975 F.2d 985, 

995 (3d Cir. 1992), and may rely upon trial testimony of co-conspirators, Price, 13 

F.3d at 732. 

Here, the District Court — after a careful and thorough consideration of the 

issue, which included a hearing addressing the issues of, inter alia, length of 

participation in the conspiracy and drug weight attribution as to each defendant —

did not plainly err in determining that Alicea was responsible for conspiring to 

distribute 59.1 kilograms of crack cocaine. First, the District Court determined that 

Alicea was a member of the SCCG from its beginning (November 2002) to its end 

(September 2007), and thus, he was involved for 58 months, which conservatively 

equates to 232 weeks. Smith’s trial testimony supported this determination. See

Supp. App. 558 (testifying that Alicea supplied the SCCG with cocaine from 2002 

 

closely connected with the conspiracy that a reasonable jury could infer he shared a unity 
9

to 2007). Second, the District Court determined that the SCCG distributed 

approximately 9 ounces of crack per week, which is equal to approximately 255 

grams. This conservative determination was supported by the trial testimony, in 

particular Smith’s testimony that he was obtaining approximately 9 ounces of 

cocaine multiple times a week from his suppliers at the beginning of the conspiracy 

(Supp. App. 540) and that this amount increased to between 9 to 13.5 ounces later 

in the conspiracy (Supp. App. 550-51). Moreover, the trial testimony also 

indicates that Alicea knew, or that it was reasonably foreseeable, that others were 

supplying cocaine to the SCCG.4 Thus, the District Court did not plainly err in 

concluding that Alicea was responsible for 0.255 kilograms of crack per week 

multiplied by 232 weeks, totaling 59.1 kilograms of crack.

Accordingly, we will affirm. 

 

of purpose with — and joined — the SCCG with the intent to further its common goals. 

4 As discussed supra, the evidence at trial demonstrates that Alicea was closely involved 

with the SCCG’s operations and understood the conspiracy’s scope. Thus, Alicea knew 

— or reasonably should have known — that his supply of cocaine to the SCCG was 

insufficient to cover its operating needs and that the SCCG used an additional supplier. 

Also, the amount of cocaine provided by suppliers other than Alicea to the SCCG was 

within the scope of Alicea’s agreement to join the conspiracy because that amount 

allowed the SCCG to continue operating and potentially expand its market share even 

when Alicea temporarily exhausted his supply.