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# United Stat es Court of Appeals

For the First C ircuit

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. Zonayand Ford & Zonay, P.C. on brief for appellant. Michael J. Su llivan , United States Attorney, Michael J. Pelgro , Assistant U.S. Attorney, and Susan M. Poswistilo , Assistant U.S. Attorney, on brief for appellee.

April 8, 2002-2- 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 int ent to distribute and distributing quantities of heroin in violation of Title 21 U.S.C. § 841(a)(1). Page three of the indi ctme nt stated that because the conspiracy described in Count I involved one kilogram or mor e 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 gov ernment. After a sentencing hearing, the district court sentenced Marte to 16 8 mont hs (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 en de d in July, 1999. It ferreted out an extensive conspiracy to purchase heroin fr om sel lers in New York Cityand transport it to Lynn, Massachuset ts, wh ere it was-3-

processedand stored . The her oin was then sold to customers in Massachusetts, Vermont, and other states.

Starting in 1996, a Drug En forcement Agency ("DEA") undercover agent bought good-sized quantities of heroin from Angel Lopez and others in Lynn. In June, 1998, the DEA was judicially authorizedto 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 sale s 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 learnedthat Marte and Nicholas Moreno, inter alia , regularly bought large amounts of heroin in New York City. The heroin was suppliedto the Acevedo brothers, who in turn resold i t to Lopez andothers. 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 19 98 the DEA in Vermont investigated heroin trafficking in Barre, Vermont, and its en vir ons. The Vermont DEA learned that heroin was being sold regularly to-4-

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. T hese wiretaps established, inter alia , that an apartment at 345 Essex Street in Lynn, shared by two of the indict edcon spirators, was also used as an office for discussing and consummating heroin transactions. II. DISCUSSION

Clear error is the standard we apply in assess ing the district court's findings concerning the quantity of heroin and Ma rte'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-5-

Circuit is that a reasonable determination of drug quantity may be usedwhere "it is impossible or impractical to obtain an exact drug quantit y f or sentencing purposes." United States v. Morrill , 8 F.3d864, 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 reliabilit y and support in the record. UnitedStates 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 usedthe 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 n ot cle arly

err in finding that Marte conspired to distribute more than one kilogramof 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.1 Moreno fled before he could be arrested. -6- The evidence as to drug quantity is to the following effect. Marte was inv olve d 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 andMoreno knowingly worked together as the principal wholesale suppliers for the conspira cy. Under well-established conspiracy doctrine, either could be found responsible for the sales by the other. Se e , 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 approximately200 grams every 25-30 days to Marte" from the beginning of 1998.

Acevedo, who usually purchased fromMoreno, 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 Jim ine z went to New York on several occasions and picked up hundreds of grams of heroin. Rome Godoy,-7-

a.k.a. Elizabeth Ruiz, also went to New York for Moreno and Marte

severa l ti mes; 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 a utomobile in an attempt to escape. Over 110 bags of hero in 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 soldto 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 establishe dthat 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.-8- In light of this evidence, we conclude that there was no double counting. No good reason has been advancedfor doubting the Probation Department's statement that if there was a question that the drugs had already been counted, it didnot attribute the second amount t o Marte. Moreover, we see no error in the PSR’s determination of drug quantity.

Marte contends strenuously that there are "direct inconsistencies" between statemen ts 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 andthat paragraph 13, which was the basis for the analysis, stated correctlythat "Moreno suppliedMarte with 200 grams every 20 to 30 day s." It further points out that if paragraph 13 is a ccepted , there is no discrepancy betwee n the affidavits and the PSR statement. The government also notes that the district court was advisedof 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 workedunder the supervision and control of Marte. There was-9-

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 .