United States Court of Appeals

For the First Circuit

No. 02-1754

UNITED STATES OF AMERICA,

Appellee,

v.

NORMA NIEVES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

Tina Schneider, for appellant.

David Hennessy, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, were on brief, for

appellee.

March 6, 2003
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TORRUELLA, Circuit Judge. On March 26, 2002, Norma

Nieves ("Nieves") pled guilty to an indictment charging that she

conspired to distribute crack cocaine ("crack") from September 13,

1999 to December 10, 1999, in violation of 21 U.S.C. § 846 (2000),

and distributed crack and cocaine hydrochloride, in violation of 21

U.S.C. § 841. On June 7, 2002, the district court sentenced her to

60 months imprisonment, a supervised release term of four years on

the conspiracy count and three years on the distribution counts,

and a $500 special assessment.

Nieves challenges her sentence, arguing that the district

court erred in holding her responsible for a drug sale as to which

she had consistently disputed her involvement and erred in giving

her a term of supervised release in excess of the default statutory

maximum. For the following reasons, we affirm.

I. Attack on Term of Imprisonment

Because Nieves pled guilty to an indictment that did not

contain a specific drug quantity, the district court determined

whether Nieves was accountable for 1.63 grams of crack sold on

December 7, 1999 by Alex Nieves ("Alex"), Nieves's son and coconspirator, to a cooperating witness ("CW").

A. Arguments Before the District Court

The government contended that the facts supported holding

Nieves accountable under an aiding and abetting theory, U.S.

Sentencing Guidelines Manual ("U.S.S.G." or "Sentencing
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Guidelines") § 1B1.3(a)(1)(A) (2002), or under a theory of jointly

undertaken criminal conduct, U.S.S.G. § 1B1.3(a)(1)(B). According

to the presentence report, on December 7, 1999, Alex delivered

crack to the CW at the CW's home and said that he would return with

more. When Alex failed to return, the CW called Nieves's

residence. The CW inquired as to Alex's whereabouts, and Nieves

asked if Alex had just delivered crack to the CW. The CW responded

that Alex had, but he was supposed to deliver more. Nieves then

agreed to call the CW if she heard from Alex. A short time later,

Alex called the CW and said that he was on his way; he then

delivered additional crack to the CW.

In her objection to the presentence report, Nieves argued

that she could not be held accountable for the December 7 sale

because she withdrew from the drug conspiracy in October of 1999,

when she told the CW that due to her pregnancy she had stopped

using drugs and would no longer help the CW acquire drugs. In

response, the CW congratulated her on her decision and wished her

luck with her pregnancy. Nieves did not have further contact with

the CW until December 7, 1999, when the CW called Nieves's

residence looking for Alex. Nieves contended that nothing in the

phone call indicated that Nieves either spoke with Alex before he

completed the cocaine sale or knew that Alex supplied the CW with

drugs until after the sale was completed.
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After considering the parties' arguments, the district

court held Nieves accountable for the 1.63 grams of crack, finding

"that she was a part of [the December 7, 1999] transaction, aided

and abetted its completion, and cooperated with the further contact

between the supplier and her son."

By including the December 7 sale, the total amount of

cocaine base attributable to Nieves rose above five grams and

subjected her to a mandatory minimum five-year sentence of

imprisonment. Nieves challenges the district court's attribution

of the December 7 sale to her.

B. Standard of Review

At sentencing, the government must prove drug quantity by

a preponderance of the evidence. United States v. Eke, 117 F.3d

19, 22 (1st Cir. 1997). Nieves's attack on the sentencing court's

inclusion of the December 7 sale is an attack on the court's

findings of fact, which we review for clear error, United States v.

Caba, 241 F.3d 98, 102 (1st Cir. 2001), and an attack on its

application of law, which we review under a sliding-scale standard,

United States v. Howard (In re Extradition of Howard), 996 F.2d

1320, 1328 (1st Cir. 1993). "The standard of review applicable to

mixed questions usually depends upon where they fall along the

degree-of-deference continuum: the more fact-dominated the

question, the more likely it is that the trier's resolution of it

will be accepted unless shown to be clearly erroneous." Id.
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C. Relevant Conduct

Nieves argues that the government did not present

sufficient evidence for the district court to hold her responsible

for the December 7 sale under either an aiding and abetting theory

or under a theory of jointly undertaken criminal conduct. We

disagree. The sentencing guidelines instruct the district court to

hold the defendant responsible both for acts she personally

committed and for acts attributable to her as relevant conduct.

See U.S.S.G. § 1B1.3.

The district court did not err in finding by a

preponderance of the evidence that Nieves aided and abetted the

final drug sale. See U.S.S.G. § 1B1.3(a)(1)(A) (stating that the

court shall determine the sentencing range on the basis of "all

acts and omissions committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant"). The

telephone call in which Nieves agreed to tell Alex to call the CW

-- while aware that the CW wanted to purchase drugs -- established

Nieves's knowledge of the sale and constituted sufficient evidence

to support a finding of aiding and abetting. United States v.

Taylor, 54 F.3d 967, 975 (1st Cir. 1995) (stating that the crucial

element of aiding and abetting is a showing -- "that may be made

wholly on the basis of circumstantial evidence" -- "that the

defendant consciously shared the principal's knowledge of the

underlying criminal act, and intended to help the principal").
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Similarly, the district court did not err in finding by

a preponderance of the evidence that Nieves was responsible for the

December transaction under a conspiracy theory. U.S.S.G. § 1B1.3

(a)(1)(B) (stating that "in the case of jointly undertaken criminal

activity," the defendant's guideline range is determined by "all

reasonably foreseeable acts and omissions of others in furtherance

of the jointly undertaken criminal activity"). Nieves admitted to

having arranged prior drug purchases for the CW and to having had

a drug-trafficking relationship with Alex. This evidence coupled

with the telephone call between Nieves and the CW constituted

sufficient evidence for finding that the December 7 transaction was

"a reasonably foreseeable act[] . . . of others in furtherance of

the jointly undertaken criminal activity." Id.

Nieves argues that she cannot be held responsible under

U.S.S.G. § 1B1.3(a)(1)(B) because she had successfully withdrawn

from the conspiracy prior to the December 7 sale. To withdraw from

an ongoing conspiracy, Nieves must do more than merely cease

selling drugs. United States v. Piper, 298 F.3d 47, 53 (1st Cir.

2002). "In order to withdraw, a conspirator must act affirmatively

either to defeat or disavow the purposes of the conspiracy."

United States v. Dunn, 758 F.2d 30, 37 (1st Cir. 1985) (quoting

United States v. Phillips, 664 F.2d 971, 1018 (5th Cir. 1981)).

"Typically, there must be evidence of a full confession to

authorities or a communication by the accused to his co-
1 To the extent that Nieves attempts to make out a claim based on

U.S.S.G. § 5D1.2, see United States v. Nelson-Rodríguez, No. 00-

1422, slip op. at 73-74 (1st Cir. Feb. 7, 2003), that claim has

been procedurally defaulted by her failure to advert to it in her

opening brief. United States v. Brennan, 994 F.2d 918, 922 n.7

(1st Cir. 1993) (stating that "it is well settled that a legal

argument made for the first time in an appellant's reply brief

comes too late and need not be addressed" (citation omitted)).

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conspirators that he has abandoned the enterprise and its goals."

United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) (per

curiam).

Nieves contends that she withdrew from the conspiracy

when she told the CW that due to her pregnancy she would no longer

take or sell drugs. Even assuming that the district court believed

Nieves's rendition of her conversation with the CW, the sentencing

court did not err in finding that by later agreeing to help the CW

contact Alex in order to procure drugs, Nieves had not truly

"disavow[ed] the purposes of the conspiracy." United States v.

Piva, 870 F.2d 753, 757 (1st Cir. 1989). Consequently, we find

that the district court did not err in holding Nieves accountable

for the 1.63 grams of crack in dispute.

II. Supervised Release Challenge

Nieves's final argument is that the sentencing court

committed Apprendi error by sentencing her to a period of

supervised release beyond the statutory maximum.1 The conspiracy

count was a Class C offense, for which 18 U.S.C. § 3583(b)

authorizes only a three-year term of supervised release.
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Therefore, she argues, the court erred in sentencing her to four

years of supervised release. As Nieves acknowledges, her

supervised release claim is reviewable only for plain error because

she failed to make her Apprendi claim below. United States v.

Allen, 312 F.3d 512, 514 (1st Cir. 2002).

According to Apprendi v. New Jersey, 530 U.S. 466, 476

(2000), it is a constitutional requirement "that any fact (other

than prior conviction) that increases the maximum penalty for a

crime must be charged in an indictment, submitted to a jury, and

proven beyond a reasonable doubt." Nieves claims that the district

court erred because the body of the indictment did not specify any

amount of drugs, yet the court sentenced her to a term of

supervised release in excess of the maximum sentence allowable

under 21 U.S.C. § 841(b) and 18 U.S.C. § 3583(b).

Although Nieves phrases her claim in terms of Apprendi,

the claim ultimately boils down to a question of statutory

construction, a question our recent decisions have answered

adversely to Nieves. In United States v. López, 299 F.3d 84 (1st

Cir. 2002), we determined that the "at least" language in 21 U.S.C.

§ 841(b)(1)(B) "establishes a mandatory minimum term of supervised

release, but no maximum." López, 299 F.3d at 89-90. Then in

United States v. Cortés-Claudio, 312 F.3d 17, 18-19 (1st Cir.

2002), we held that 18 U.S.C. § 3583(b) "does not limit the length

of supervised release terms in cases under § 841." Consequently,
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the maximum term of supervised release that the sentencing court

could have imposed ranged from the mandatory minimum set forth in

§ 841(b) up to life. Nieves is therefore left without a viable

claim because "Apprendi simply does not apply to guideline findings

(including, inter alia, drug weight calculations) that increase the

defendant's sentence, but do not elevate the sentence to a point

beyond the lowest applicable statutory maximum." United States v.

Caba, 241 F.3d 98, 101 (1st Cir. 2001).

III. Conclusion

For the reasons stated above, we affirm.