[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 01-1416

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE MARTE, A/K/A ABRAHAM,

A/K/A ABRAM, A/K/A EL DOCTOR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Campbell and Bownes, Senior Circuit Judges.

Thomas A. Zonay and Ford & Zonay, P.C. on brief for appellant.

Michael J. Sullivan, United States Attorney, Michael J.

Pelgro, Assistant U.S. Attorney, and Susan M. Poswistilo, Assistant

U.S. Attorney, on brief for appellee.

April 8, 2002
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BOWNES, Senior Circuit Judge. Defendant-appellant Jose

Marte, along with nineteen other individuals, was charged in a

multi-count indictment of knowingly and intentionally conspiring to

possess with intent to distribute and distributing quantities of

heroin in violation of Title 21 U.S.C. § 841(a)(1). Page three of

the indictment stated that because the conspiracy described in

Count I involved one kilogram or more of a heroin mixture, the

provisions of 21 U.S.C. § 841(b)(1)(A)(i) applied, and therefore a

minimum sentence of ten years was mandated.

Marte entered a guilty plea to Count I pursuant to a

written plea agreement with the government. After a sentencing

hearing, the district court sentenced Marte to 168 months (14

years) in prison and 5 years supervised release. 

Two issues are before us: (1) whether the district court

erred in determining that the amount of heroin Marte conspired to

distribute amounted to one kilogram or more; and (2) whether the

district court erred in finding that Marte was a supervisor or

manager in the framework of the heroin conspiracy.

I. BACKGROUND

The investigation that culminated in this case started in

August, 1996, and ended in July, 1999. It ferreted out an

extensive conspiracy to purchase heroin from sellers in New York

City and transport it to Lynn, Massachusetts, where it was
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processed and stored. The heroin was then sold to customers in

Massachusetts, Vermont, and other states.

Starting in 1996, a Drug Enforcement Agency ("DEA")

undercover agent bought good-sized quantities of heroin from Angel

Lopez and others in Lynn. In June, 1998, the DEA was judicially

authorized to place wiretaps on three telephones used by Lopez and

others so as to obtain information about their heroin trafficking.

The wiretapped conversations led the DEA to conclude that Domingo

Acevedo and his brother, Rafael, were the sources of Lopez's heroin

purchases and that Domingo's apartment at 193 Essex Street was used

as an office in which heroin sales were discussed and settled by

telephone.

The DEA was judicially authorized to install a wiretap on

the phone in Domingo Acevedo's apartment at 193 Essex Street in

Lynn. Based on the conversations recorded by this wiretap, the DEA

learned that Marte and Nicholas Moreno, inter alia, regularly

bought large amounts of heroin in New York City. The heroin was

supplied to the Acevedo brothers, who in turn resold it to Lopez

and others. The DEA also learned that Marte and Moreno used the

apartment at 193 Essex Street as a base of operation for planning

heroin sales and trips to New York City to obtain heroin.

In the fall of 1998 the DEA in Vermont investigated

heroin trafficking in Barre, Vermont, and its environs. The

Vermont DEA learned that heroin was being sold regularly to
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residents of Vermont by Jesus Veadejo, who resided in Lynn,

Massachusetts. Veadejo was arrested in early December, 1998. As

a result, it was determined that Marte regularly sold heroin to

Veadejo, who resold it to Vermont dealers, who took it to Vermont

for sale to retail customers.

In early February, 1999, the DEA obtained authorization

for four more wiretaps. Three of the wiretaps were the sources of

incriminating evidence. These wiretaps established, inter alia,

that an apartment at 345 Essex Street in Lynn, shared by two of the

indicted conspirators, was also used as an office for discussing

and consummating heroin transactions.

II. DISCUSSION

Clear error is the standard we apply in assessing the

district court's findings concerning the quantity of heroin and

Marte's role in the conspiracy. United States v. Caba, 241 F.3d

98, 102 (1st Cir. 2001); United States v. Hernandez, 218 F.3d 58,

71 (1st Cir. 2000). We review de novo the district court's

interpretation of the Sentencing Guidelines and its application of

the law. United States v. Muniz, 49 F.3d 36, 41 (1st Cir. 1995).

We first set forth the pertinent law of sentencing. We

start with the Guidelines: "Where there is no drug seizure or the

amount seized does not reflect the scale of the offense, the court

shall approximate the quantity of controlled substance." U.S.S.G.

§ 2D1.1, cmt. n.12 (2001)(emphasis added). The rule in this
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Circuit is that a reasonable determination of drug quantity may be

used where "it is impossible or impractical to obtain an exact drug

quantity for sentencing purposes." United States v. Morrill, 8

F.3d 864, 871 (1st Cir. 1993); see also United States v.

Huddleston, 194 F.3d 214, 224 (1st Cir. 1999); United States v.

Rodriguez, 162 F.3d 135, 149 (1st Cir. 1998). We have also held,

however, that a reasonable estimate of drug quantity must be based

on adequate indicia of reliability and support in the record.

United States v. Rivera-Maldonado, 194 F.3d 224, 228 (1st Cir.

1999). Moreover, a district court judge should follow a

"conservative approach" when determining huge quantities. United

States v. Sklar, 920 F.2d 107, 113-14 (1st Cir. 1990).

As is usual in sentencing appeals, the district court

used the presentence report (PSR) as the primary source for its

findings of facts. It also examined witness statements and three

affidavits of co-conspirators submitted by the government. Our

careful examination of the evidence, as contained in the PSR and

affidavits, convinces us that the district court did not clearly

err in finding that Marte conspired to distribute more than one

kilogram of heroin. Nor was it clearly erroneous for the district

court to find that Marte's role in the conspiracy was that of a

manager or supervisor.
1Moreno fled before he could be arrested.

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The evidence as to drug quantity is to the following

effect. Marte was involved in the heroin business with Moreno.1

At times Marte was a wholesale buyer for Moreno and at other times

he and Moreno, working together, supplied heroin to joint

customers. Although the district court did not explicitly so find,

we think the evidence amply permitted it to have found that Marte

and Moreno knowingly worked together as the principal wholesale

suppliers for the conspiracy. Under well-established conspiracy

doctrine, either could be found responsible for the sales by the

other. See, e.g., United States v. O'Campo, 973 F.2d 1015, 1021

(1st Cir. 1992).

Sometime in 1998, Moreno introduced Marte to Moreno's New

York heroin source. From then on Marte bought heroin directly from

the source rather than from Moreno. Moreno told another indicted

conspirator, Rafael Acevedo, that he (Moreno) "provided

approximately 200 grams every 25-30 days to Marte" from the

beginning of 1998.

Acevedo, who usually purchased from Moreno, stated in an

affidavit that he purchased heroin directly from Marte "more than

five times." These purchases amounted to at least forty to fifty

grams. Marte and Moreno used agents to go to New York and purchase

heroin for him. Bolivar Jiminez went to New York on several

occasions and picked up hundreds of grams of heroin. Rome Godoy,
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a.k.a. Elizabeth Ruiz, also went to New York for Moreno and Marte

several times; on one such occasion she picked up 100 grams of

heroin.

On June 9, 1998, Marte was arrested by the police in

Chelsea, Massachusetts, after he had struck one of the arresting

officers with his automobile in an attempt to escape. Over 110

bags of heroin with a net weight of 2.01 grams were found in his

car. On August 10 and 11, 1998, wiretap conversation established

that Marte supplied Lopez with 58.6 grams of heroin, which Lopez

sold to an undercover DEA agent for $7,000. On August 15, another

wiretap conversation established that Marte told Moreno that he had

given "500" to another person in the past week. 

Additional findings as to drug quantity were set forth in

the PSR. Marte's use of Jiminez and Godoy as his agents to obtain

the heroin in New York and deliver it to his office in Lynn

established that 300 grams of heroin were attributable to Marte.

The arrest of Marte by the police in Chelsea involved 252.9 grams

of heroin for which Marte was responsible. Marte supplied his

Vermont connection, Veadejo, with 129.6 grams of heroin over time.

Marte had stored 140 grams of heroin at the Chatham Street

apartment. The total amount of heroin that the PSR found

attributable to Marte was 1,422.5 grams, which translated into 1.4

kilograms. 
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In light of this evidence, we conclude that there was no

double counting. No good reason has been advanced for doubting the

Probation Department's statement that if there was a question that

the drugs had already been counted, it did not attribute the second

amount to Marte. Moreover, we see no error in the PSR’s

determination of drug quantity. 

Marte contends strenuously that there are "direct

inconsistencies" between statements in the affidavits and the

determinations in the PSR. He points specifically to paragraph 13

of the PSR, which states: "Marte supplied Domingo Acevedo with 200

grams of heroin every 20 to 30 days." The government's response is

that paragraph 111 of the PSR contained an error in transcription

and that paragraph 13, which was the basis for the analysis, stated

correctly that "Moreno supplied Marte with 200 grams every 20 to 30

days." It further points out that if paragraph 13 is accepted,

there is no discrepancy between the affidavits and the PSR

statement. The government also notes that the district court was

advised of the transcription error in paragraph 111. The only

thing that is lacking is an indication by the district court that

it was aware of the transcription error. That is hardly

sufficient, however, to find that there was clear error in the

court's finding of the amount of heroin involved.

Finally, the PSR stated that Jiminez, Godoy, and Veadejo

worked under the supervision and control of Marte. There was
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adequate evidence for this finding and the district court did not

err in increasing Marte's sentence to reflect his role in the

offense.

We affirm the sentence of the district court in all

respects.