*Of the District of New Hampshire, sitting by designation.

Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-1188

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN DENARO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, District Judge]

Before

 Lipez, Circuit Judge,

Coffin, Senior Circuit Judge,

and Barbadoro,* District Judge.

Richard F. Comenzo for appellant.

Dickens Mathieu, with whom Michael J. Sullivan, United

States Attorney, and John A. Wortman, Jr., Assistant United

States Attorney, were on brief for the United States.

March 15, 2004
1 The indictment included a criminal forfeiture count that

has no bearing on the appeal. 

BARBADORO, District Judge. John Denaro was sentenced to

135 months in prison after pleading guilty to one count of

conspiracy to distribute at least 500 grams of cocaine, three

counts of possession of cocaine with intent to distribute, and two

counts of distribution of cocaine.1 He argues on appeal that the

district court should have allowed him to withdraw his guilty pleas

prior to sentencing because the court did not advise him at the

guilty plea hearing of the possibility that he could be subject to

a 10-year mandatory minimum sentence. He also contends that the

court attributed more cocaine to him at sentencing than was

permitted under the indictment or warranted based on the evidence.

Finally, he claims that the court erred in determining that he was

a manager or supervisor of a criminal activity that involved five

or more persons. We affirm. 

I. 

A. The Guilty Plea Hearing

Denaro pleaded guilty to the charges against him without

the benefit of a plea agreement. At the outset of the hearing on

the proposed guilty pleas, the prosecutor explained to Denaro and

the court that Denaro faced a maximum possible prison sentence of

40 years and a mandatory minimum sentence of at least five years

because the charged conspiracy involved at least 500 grams of

cocaine. He then explained that the mandatory minimum sentence
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would increase to 10 years if the court determined at sentencing

that Denaro was responsible for at least five kilograms of cocaine.

Denaro’s counsel responded by stating his view that the drug

quantity specified in the indictment limited the mandatory minimum

sentence to five years. He acknowledged, however, that the

prosecutor was free to argue otherwise at sentencing. 

The court advised Denaro during the plea colloquy that he

faced maximum possible sentences of 40 years on the conspiracy

count and 20 years on each of the substantive counts. The court

also initially advised him that he was subject to a five-year

mandatory minimum sentence. However, the court immediately revised

its statement during the following exchange: 

COURT: Because each count is a

separate offense, the maximums get

added up, so that the total maximum,

if my math is correct, is 140 years

in prison, a four-year period of

supervised release, a fine of $7

million, and a special assessment of

$600, and a mandatory minimum also

of five years. The government says,

conceivably, ten years, but that’s

in dispute. Do you understand that?

WITNESS: Yes.

B. The PSR

Denaro’s Presentence Report (“PSR”) concluded that he was

subject to a 10-year mandatory minimum sentence pursuant to 21

U.S.C. § 841(b)(1)(A) because he was responsible for 7.066

kilograms of cocaine. The PSR based its drug quantity
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determination on: (1) 412.32 grams that were seized from Denaro;

(2) 1,652 grams that were derived from drug ledgers; (3) 50 grams

that were attributed to Denaro by Jonathan Pierce, a distributor

who worked for Denaro; and (4) 4,952 grams that were attributed to

Denaro by Kyle Visco, a cooperating coconspirator. 

The PSR also proposed a four level increase in Denaro’s

offense level pursuant to U.S.S.G. § 3B1.1(a) because it concluded

that Denaro was an organizer or leader of a criminal activity that

involved five or more persons. The PSR named Denaro, Pierce,

Visco, Denaro’s principal supplier, Yolieda Aquire, and one of his

distributors, Tiffany Franklin, as the five participants in the

conspiracy. 

Denaro objected to the PSR on the grounds that the

indictment limited the amount of cocaine that could be attributed

to him to 4,999 grams, the drug quantity determination was

excessive, and the proposed role in the offense adjustment was

unwarranted. 

C. The Sentencing Hearing

Denaro moved to withdraw his guilty plea during the

sentencing hearing because he claimed that the district court

failed to properly advise him of the possibility that he could be

subject to a 10-year mandatory minimum sentence. The court

rejected his motion because it determined that Denaro had knowledge
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of the potential penalties he faced when he entered his guilty

pleas. 

The court then turned to Denaro’s objections to the PSR.

After hearing testimony from Visco concerning his dealings with

Denaro, the court determined that he was responsible for more than

six kilograms of cocaine. It also concluded that Denaro should

receive a three level role adjustment rather than the four level

adjustment proposed by the PSR because he was a manager or

supervisor but not an organizer or leader of a criminal activity

that involved five or more participants. After making the

necessary adjustments required by the sentencing guidelines, the

court determined that Denaro’s sentencing range was 135 to 168

months. The court selected a sentence at the bottom of the range.

II. 

A. The Guilty Plea

Denaro first argues that the district court erred in

denying his request to withdraw his guilty plea because the court

failed to properly advise him at the guilty plea hearing that he

could be subject to a 10-year mandatory minimum sentence. 

This claim does not require extended analysis. Although

Fed. R. Crim. P. 11(b)(1) requires a court to “inform the defendant

of, and determine that the defendant understands” any mandatory

minimum penalty before it accepts a guilty plea, the record

demonstrates that the court complied with this requirement by
2 Denaro casts his argument as a material variance claim but

this is clearly wrong. A material variance arises when the

indictment differs substantially from the proof offered at trial.

See, e.g., United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998).

Such claims become moot when a defendant avoids trial by pleading

guilty. For the reasons that we explain, however, Denaro’s claim

fails regardless of how it is characterized. 

3 He attempts to bolster this portion of his argument by

noting that the version of the indictment he plead guilty to

superceded an indictment that charged an amount in excess of five

kilograms.

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advising Denaro of the government’s contention that he could be

subject to a 10-year mandatory minimum sentence. Given Denaro’s

statement at the plea hearing that he understood that he faced this

possibility and the absence of any other evidence in the record

suggesting that he was confused about the issue, the district court

acted properly in denying his request to withdraw his guilty plea.

B. The Indictment

Denaro next argues that the court attributed more cocaine

to him for sentencing purposes than the indictment permitted.2 His

argument proceeds in several steps. First, he notes that the

indictment alleged that the conspiracy involved “at least” 500

grams of cocaine, an amount that is sufficient to trigger a

possible 40-year maximum sentence under 21 U.S.C. § 841(b)(1)(B).

Second, because § 841(b)(1)(B) covers conspiracies that involve at

least 500 grams but no more than five kilograms of cocaine, he

reasons that the maximum amount of cocaine that the court could

attribute to him for any purpose is 4,999 grams.3 He then argues
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that the proof varied materially from the indictment because the

court attributed more than six kilograms of cocaine to him at

sentencing. 

This argument is fatally flawed because it is based on

the mistaken premise that a drug quantity allegation such as the

one at issue here caps the amount of cocaine that can be attributed

to a defendant at sentencing in the same way that it limits a

defendant’s maximum sentence under § 841(b)(1)(B). It does not.

See United States v. Goodine, 326 F.3d 26, 32-33 (1st Cir. 2003).

Instead, when an indictment alleges a drug quantity of “at least”

a specified amount, the sentencing court is free to attribute

whatever drug quantity the evidence warrants to a defendant as long

as the defendant’s sentence does not exceed the applicable

statutory maximum sentence. See United States v. Perez-Ruiz, 353

F.3d, 1, 15 (1st Cir. 2003). Accordingly, we reject Denaro’s

argument that the drug quantity specified in his indictment capped

the amount of cocaine that could be attributed to him at

sentencing.

C. The Drug Quantity Determination

Denaro next argues that the district court erred in

crediting Visco’s testimony concerning the amount of cocaine that

Denaro sold during the life of the conspiracy. This argument is a

non-starter. As we have held on many occasions, credibility

determinations at sentencing are the exclusive province of the
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district court. See United States v. Sanchez, 354 F.3d 70, 83 (1st

Cir. 2004); United States v. Conley, 156 F.3d 78, 85 (1st Cir.

1998); United States v. Sepulveda, 15 F.3d 1163, 1198 (1st Cir.

1993). The district court chose to believe Visco and his testimony

was sufficient to support the court’s drug quantity determination.

That ends the matter. 

D. The Role in the Offense Adjustment

The district court gave Denaro a three-level enhancement

pursuant to U.S.S.G. § 3B1.1(b) because it determined that he was

a manager or supervisor of a criminal activity that involved five

or more persons. Denaro does not challenge the district court’s

determination that he was a manager or supervisor. Instead, he

faults the court for failing to specifically identify the

participants in the conspiracy and argues that the record doesn’t

support the court’s general finding that the conspiracy involved at

least five such participants. 

Denaro’s first argument fails because we have determined

that a sentencing court need not make specific findings when

applying a role adjustment if “the record clearly reflects the

basis of the court’s determination.” See United States v. MarreroOrtiz, 160 F.3d 768, 779 (1st Cir. 1998). Only four persons in

addition to the defendant are needed to satisfy the five person

requirement, see United States v. Preakos, 907 F.2d 7, 10 (1st Cir.

1990), and the PSR specifically identified four of the defendant’s
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coconspirators as participants. Under these circumstances, the

court did not need to specifically name the participants to justify

its determination that the adjustment was warranted. 

Denaro’s second argument fares no better. The PSR

provided a detailed description of the roles that each of the named

participants played in the conspiracy and Visco’s testimony at the

sentencing hearing served as further corroboration. The record

thus contains ample evidence to justify the court’s conclusion that

the four individuals named in the PSR were all active participants

in the conspiracy. Since Denaro does not challenge the court’s

conclusion that he was a manager or supervisor of the conspiracy,

the court’s three-level role in the offense adjustment was proper.

III.

We affirm the actions of the court below because Denaro

was informed of the applicable mandatory minimum sentence when he

agreed to plead guilty and the court’s sentencing determinations

were within its discretion. 

Affirmed.