USCA1 Opinion

February 8, 1993
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 92-1709
UNITED STATES,
Appellee,
v.
PAUL J. CASTELLONE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge, and
____________________
Stahl, Circuit Judge.
_____________
____________________
Edward

J.

Romano with

whom

Michael

Devlin

was

on brief

__________________
appellant.

_______________

Stephanie S. Browne, Assistant United States Attorney, with w

___________________
Margaret E. Curran, Assistant United States Attorney and Lincoln
___________________
_______
Almond, United States Attorney, were on brief for appellee.
______
____________________
February 8, 1993
____________________

STAHL,

Circuit Judge.
_____________

Defendant-appellant Paul J.

Castellone pled guilty to a two-count information in which he

was charged
21

U.S.C.

with distribution of marijuana,

841(a)(1).

He

was sentenced

imprisonment and three years of

appeal,

Castellone challenges

related to

the district

level assigned to
argues:

1) that

in violation of
to 21

months of

supervised release.
his sentence

on two

court's calculation of

his conviction.

In this
grounds

the offense

Specifically,

the court erroneously included as

defendant
relevant

conduct certain amounts of marijuana sold by a coconspirator;

and

2) that

the court

managerial role in the

should not
offense.

have ascribed

As we find

to him

these arguments

persuasive, and the government has candidly made us aware

an

apparent

mathematical

error

in

the

offense

of

level

calculation, we remand for resentencing.

I.
I.
__
Background
Background
__________
Because
relevant

Castellone

facts from

Report (PSR)

the

and the

pled

guilty,

probation

we

officer's

transcript of the

garner

Pre-Sentence

sentencing hearing.

United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992).

_____________
______
early

January

Providence,
undercover
Castellone

1992,

Rhode

Detective

Island,

investigation

Michael

Police
of

and Roland R. Chaput.

-22

the

Purro

Department

marijuana
Purro was

In

of

the

began

an

trafficking

by

assisted by an

agent

from

the

federal

Bureau

of

Alcohol,

Tobacco

and

Firearms.
On

January

9,

1992,

undercover

capacity, purchased

Castellone

for $2,200

Purro purchased
for

the same

Detective
one pound of

("the first

another pound
price ("the

Purro,

his

marijuana from

sale").

The next

of marijuana

second sale").

in

day,

from Castellone
Both

sales took

place in the late afternoon at a Dunkin Donuts on East Street

in Providence.
Castellone
Chaput

Prior

to the

arrive

approached

to the

Dunkin

and

sale, Purro

Donuts parking

enter

Castellone's

second

Castellone's
vehicle

and

lot and
car.

followed
observed

Purro

introduced

then

himself

directly to Chaput, whom he believed, correctly, as it

later

turned out, to be Castellone's supplier.

At some point between January 10 and 16, Castellone
and Purro discussed
handgun.

a sale of five pounds of marijuana and a

Castellone told

Purro that he had been

with Chaput and would be able to execute the sale.

enforcement officials

in contact
Since law

considered Chaput to be a higher-level

dealer and a more important target than Castellone, Detective

Purro decided
and

instead

Chaput's

to exclude
buy

directly

phone number from

Castellone from any

future deals,

from Chaput.

After

obtaining

a confidential

informant, Purro

contacted him and after discussion was offered five pounds of

marijuana for $1700 per pound ("the third sale").

Castellone

-33

was totally unaware of

the third sale or the

direct contact

between Purro and Chaput.

On January
Chaput,

16, 1992, at

approximately 6:30

p.m.,

Purro, and two other men, Robert Laiter and Peter M.

Leite, all arrived at the Dunkin Donuts in separate vehicles.

Chaput retrieved a handgun from Laiter's car and delivered it
to

Purro.

Chaput, Laiter

and Leite

Chaput was removing the marijuana

car.

were all

arrested as

from the trunk of

Law enforcement agents found

Leite's

five, approximately one-

pound packages of marijuana in the trunk.1

Castellone was
was later

not present at the

arrested pursuant to

agreed to plead

guilty to an

the first two marijuana deals.

He subsequently

information charging him

with

He also agreed to assist the

government

in its

trade.

return for his cooperation, the government agreed

In

attempts

a warrant.

third sale, but

not to charge him with

marijuana.

to arrest

others

conspiring with Chaput to

in the

drug

distribute

The plea agreement also indicated that the weight

of the two sales

grams.
hold
grams

to which Castellone was pleading

was 908.7

Moreover, the government agreed it would not seek to

Castellone responsible

at sentencing

for the

2,300.3

or the firearm seized at the January 16, 1992, arrest.

____________________
1. The total weight of the five packages was 2,300.3 grams.
As a pound contains 454 grams, the contraband slightly
exceeded five pounds.
-44

Finally, the government agreed to recommend a sentence at the

low end of the applicable guideline range.
II.
II.
___
Sentencing
Sentencing
__________
In

calculating

Castellone's

base

offense

("BOL"), the probation officer used a total quantity

grams
Chaput

of marijuana.

This

level
of 3209

amount included the 2,300.3 grams

delivered to Purro at the third

sale, as well as the

908.7 grams

Castellone sold directly

two sales.

2D1.1(c), the probation officer tabulated a

BOL of 12, applicable to

kilograms.

Castellone's
3B1.1(c),

the first

Applying the Sentencing Guidelines' Drug Quantity

Table, U.S.S.G.

and five

to Purro at

The BOL was increased by two levels for

managerial

and

quantities of marijuana between 2.5

role

decreased by

responsibility.
history category

After

in the
two

offense,

levels

assigning

U.S.S.G.

for acceptance

Castellone

of I, the probation

of

criminal

officer concluded that

Castellone's offense level was 12, with a resulting guideline

range of 10 to 16 months.
Prior to
inclusion of
sale

as

sentencing,

the 2300.3

relevant

Castellone objected

grams of

conduct,

as

marijuana from
well

as

to

adjustment for a managerial role in the offense.

to

the

the third

the two-level
At the May

19, 1992, sentencing hearing, the defense put Detective Purro

on

the

stand to

testify

about,

-55

inter alia,
_____ ____

Castellone's

involvement--or
close
what

lack thereof--in

the

third sale.

At

the

of the hearing, the trial court expressed concern over

it

thought

to

be

an

inconsistency

between

the

government's plea agreement obligation not to hold Castellone

responsible for
statement

the third sale, and

that in

government

was

response to

prepared

to

the probation officer's

Castellone's objection,
present

Castellone's role in the third sale.

court gave
plea.

Castellone the

Castellone

reconvened

on

reiterated

its

two

the

that

decision

his guilty

sentencing

whereupon

the

defendant

the 908.7 grams

sales.

government's

Accordingly, the trial

and

1992,

position

responsible only for

first

15,

regarding

option of withdrawing

declined,

June

evidence

the

hearing

government

was

legally

of marijuana from

The

court,

however,

questioned

to

forego

inclusion of

the

the
the

2300.3

grams.

In response, the government cited the plea agreement,

which,

in turn, was based on its conclusion that the element

of

foreseeability of

the

third

Castellone, was "questionable."

further testimony from
nexus

existed

sale,

as

it

related

The trial court then ordered

Purro, to elaborate on what,

between

to

Purro

and

if any,

Castellone's

last

conversation and the third sale.

Following Purro's testimony, and

defense argument,

the court found that Castellone initiated the third

that

he

took two

actions in

-66

furtherance

of that

sale and
sale by

initiating the negotiations

Purro's
those

marijuana and
findings,

the

with Purro and by

handgun order
court

ruled

constituted relevant conduct

communicating

to

Chaput.

that

the

Based on
third

for which Castellone

sale

should be

held responsible.
Next, having heard argument
role in the
negotiations

offense, the trial court found that Castellone's

in the first

third supported
role.

regarding Castellone's

two sales and

an offense

involvement in the

level increase for

a managerial

Castellone appeals these two findings.

III.
III.
____
Discussion
Discussion
__________
At the outset, we

correct

an

apparent

mathematical

Castellone's offense level,

the

merits

of

the

note that remand is in

error

in

order to

calculating

irrespective of our decision

trial

court's

findings.2

on

brief

explanation follows.
The court found that

the third sale, involving the

2300.3

grams

conduct

for

level.

of marijuana
purposes

As noted,

yielded a

and

of

handgun, was

determining

supra, p.
_____

BOL of 12.

the

3,

relevant

Castellone's offense

this amount

The firearm added two

of marijuana
levels, to 14.

____________________
2. Although Castellone failed to raise this argument before
the trial court, we do have jurisdiction to correct plain
error. United States v. Morales-Diaz, 925 F.2d 535, 539 (1st
_____________
____________
Cir. 1991).
-77

U.S.S.G.

2D1.1(b)(1).3

managerial

role

added

The court's ruling on Castellone's

two

adjusted offense level of 16.

more levels,
U.S.S.G.

resulting
3B1.1(c).

the court agreed that Castellone was entitled to a

reduction for
3E1.1(a),
coupled

his acceptance

suggesting an
with

sentencing range of 15
Sentencing Table.

an

Finally,
two-level

of responsibility, U.S.S.G.

offense

criminal

in

level of

history

14, which,

category

to 21 months. U.S.S.G.

I,

when

yields
5, Part

a
A,

The court, however, after factoring in the

relevant conduct, erroneously began

18, which it
of

reduced to 16 based on

responsibility.

agreement,

the

with an offense level of

Castellone's acceptance

Thereafter, consistent

trial

court

sentenced

with

Castellone

the plea
at

the

lenient end of the 21 to 27 month range called for by offense

level

16.

While we

might assume

that the

district court

would again follow the plea agreement and sentence Castellone

to the bottom end of the corrected guideline range, our other
rulings relative

to the

instant sentence require

remand of

____________________
3. The PSR omitted reference to the firearm, and thus did
not account for the two-point upward adjustment. The trial
court, however, explicitly found that the gun, as part of the
third sale, was relevant conduct attributable to Castellone.
While Castellone does not specifically appeal the propriety
of the handgun increase, he did object to and has appealed
the inclusion of the third sale.
The handgun increase,
therefore, succeeds or fails concomitant with the third sale,
without meriting separate discussion.
-88

this item

as well.4

We turn now to

the substantive issues

on appeal.
A. Relevant Conduct--The Third Sale
A. Relevant Conduct--The Third Sale
____________________________________
Pursuant to

U.S.S.G.

trafficking offenses

2D1.1(c), the

depends on

attributable to the defendant.

total

includes

the amount

guilty, as well as any

954 F.2d at 15
in

BOL for drug

the quantity of

contraband

For sentencing purposes, this

to

which

the defendant

relevant uncharged conduct.

(citations omitted).

"[D]rugs not

pleads
Garcia,
______

specified

the count of conviction are to be included in determining

the offense

level if they

conduct or

part of a common

conviction."
cases

U.S.S.G.

involving

drug

in

of the same

scheme or plan as

conspiracies,

furtherance

relevant

foreseeable acts
of"

the

at 15.

the

relevant

sentencing

associated with

formula,

the

government

preponderance of the evidence

between the conduct

the count of

and omissions

In order

must

of

U.S.S.G.
to factor

conduct into
establish

the
by

that a sufficient nexus exists

at issue and the

United States v. Sklar, 920

______________
_____

In

conduct also

conspiracy.

1B1.3(a)(1)(B); Garcia, 954 F.2d

______
quantities

course of

1B1.3, comment. (background).

includes "all reasonably

others

were part

offense of conviction.

F.2d 107, 110

(1st Cir. 1990).

____________________
4. Because of our decision today, the low end of
applicable guideline range may lead to a sentence

the
not

involving incarceration.
district court.

We

leave

that

decision to

the

-99

We will set aside

the district court's findings

conduct only if they are clearly erroneous.

on relevant

United States v.
_____________

Camuti, 950 F.2d 72, 74 (1st Cir. 1991).

______
As he
government's
deal directly
him

did below,

on

with Chaput

the following

relationship

with Purro was

conversations

relative to

never agreed
a sale.

Castellone did

that the

decision to "cut him out" of the third sale and

without his

from responsibility for the

argument

such

Castellone argues here

sale.

knowledge inoculates
Castellone bases his

undisputed facts.
severed after
the

Castellone's

only preliminary

third sale

wherein the

two

that a sale would take place, or on a price for

Furthermore,

due to

not want Purro to deal

his own

profit motive,

directly with Chaput,

did not know Purro was going to do so, and

did not know that

the third sale had occurred until after his arrest.

The trial court, however, found that Castellone and

Chaput

had formed a

conspiracy to sell

Castellone initiated

marijuana, and that

the negotiation for the

third sale and

communicated Purro's third sale request to Chaput.

then determined that

the third sale was both

Castellone and in furtherance

the trial court

conduct for purposes

foreseeable to

of the conspiracy.

concluded that the

The court

Therefore,

third sale was

of sentence calculation.

relevant

Based on the

following, we disagree.

-1010

In analyzing
our

this situation,

recent decisions offer

Wood,
____

924

F.2d

399

direction.

(1st Cir.

convicted of one narcotics sale.

court placed

defendant's wife and

had

no

knowledge

We ruled

In

1991),

two of

United States v.
_____________

the

defendant

was

At sentencing, the district

additional, uncharged

conduct category.

we find that

sales into the

that an uncharged

relevant

sale between

a drug supplier, of which the defendant

until

after

the

fact,

could

not

be

considered relevant conduct for

404-05.

We

defendant

rested

"in

no

our
way

sentencing purposes.

decision

on

conspired to

the

fact

facilitate

Id. at
___

that
the

the
deal;

indeed, he had no knowledge that his wife was engaged in drug

transactions

with

Subsequently,

we

include

relevant

as

defendant's
the

upheld

fact that the

than

district

conduct

himself."
decision

to

sales

between

the

an undercover

worked

undercover officer.

as

that the
team

agent, despite

personally involved in

Garcia, 954 F.2d at 16-17.

______
indicates

to

A fair reading

defendant and
sell

drugs

As we noted:

"Garcia introduced [his coconspirator to

_______________________________________
the undercover agent] for the express
_______________________
purpose
of
facilitating
drug
transactions. He was aware of the nature
__________________________
and salient details of the relationship
_________________________________________
that developed between the
two men.
_________________________________________
There
was
no evidence
of Garcia's
affirmative
withdrawal
from
the
-1111

Id.
___

court's

drug

defendant was not

Garcia, however,
______

coconspirator

other

coconspirator and

the later sales.

of

anyone

to

his
the

conspiracy

or of any other intervening

_____________________________
event
materially
affecting
the
_________________________________________
trafficking calculus."
_____________________
Id. at 16 (emphasis added).
___
defendant's
was

accountability for drug transactions in which he

not personally

scope of

Id.
___

distinguished
his

involved is

his agreement with

enterprise."

with

We stated that "the measure of a

Wood
____

usually congruent

the other

(citation
on the

coconspirator

[]

participants in

omitted).

ground that
could

We

Wood and
____

the

therefore

"Garcia's agreement

reasonably

transcend the initial series of transactions."

Here, with

with the

Garcia as our
______

be

said

to

Id.
___
guideposts, we

find that Castellone was sufficiently detached from the third

sale

so that it stands alone, and

course of

conduct.

doubt whether

from

evidence
Castellone

he knew

Chaput
supports
and

on our

review of the

Castellone could have foreseen

sale, about which

did,

Based

not as part of an overall

the

Chaput

that the third

nothing, would take

directly

to

Purro.

district
had

formed

And

court's
a

record, we

place as
although

conclusion

conspiracy

to

it
the
that
sell

marijuana,

there is no evidence

furtherance of

a common plan between

Just as the defendant in Wood

____
dealt

with anybody

expect Purro to
clear

that the third

but

Castellone and Chaput.

had no knowledge that his wife

him, Castellone

deal directly

that Castellone

sale was in

had

with Chaput.

was little

more than

no reason

to

The record

is

a street-level

-1212

"retail" dealer, and that Chaput was his "wholesaler," rather

than

his

partner.

circumstances
bought

This

of the

conclusion

first

marijuana from

two sales,

Chaput, and

several hundred dollar profit.5

record

does not

Castellone
indicated

support the

initiated
only that

second sale, but is

while

the record

told Chaput

is

supported by
wherein

sold it

trial court's

the negotiations.
the two

of Purro's

interest in another

sale, the

Purro's testimony

"had communication"

the finding

for a

conclusion that

silent as to the instigator.

does support

Castellone

to Purro

As for the third

the

after the
Moreover,

that Castellone
sale, there

is

nothing in the
Chaput

record to indicate that

was anything

operandi.
________

In other

other than part

Castellone's call to
of the

previous modus
_____

words, after Purro made the

request for

more marijuana and a gun, Castellone attempted to accommodate

him

by contacting

record

to

his supplier.

indicate that

There

Castellone's

is nothing
call

to Chaput

intended to facilitate the Chaput-Purro transaction.

such

conclusion

demonstrates
related income

that

defies

logic,

Castellone's

was his own

unlike

the

scenario

because
source

"retail" operation.

defendant in Garcia, Castellone

______
Also

only

in the

the

was

Indeed,
record

of narcoticsUnlike the

was in business for himself.

in

Garcia,
______

Castellone

never

____________________
5. The exact amount of Castellone's per-pound profit
disputed.
Resolution
of
that
issue,
however,
insignificant to our analysis.

is
is

-1313

introduced Purro to

Chaput.

Had events

taken their

usual

course, as Castellone had

would

have

again

every reason to expect, Castellone

purchased

factored in a profit,

the

contraband

from

and re-sold it to Purro.

Chaput,

Castellone,

however, never again discussed the sale with Purro, as he had

been,

unbeknownst to

"intervening

him, bypassed.

event" adverted to in

This

is akin

Garcia.
______

to the

Thus, there was

no evidence from which the court could properly find that the
third sale

was in furtherance

Castellone

and Chaput.

of a common

Accordingly,

scheme involving

we find

the district

court's inclusion of the third sale as relevant conduct to be

clearly erroneous.6
B. The Managerial Role
B. The Managerial Role
_______________________
Despite

entreaties

government, the trial

increase in
activity

his BOL

from

both

the

defense

court assessed Castellone a

for his role

pursuant to U.S.S.G

as a manager

3B1.1(c).

and

two-level
of criminal

Upon review of the

record, we find this increase legally insupportable.

At the
the

burden

warranted.
Cir.

outset, we

of

proving

that

United States v.
_____________

1992), cert.
_____

note that the

an

government bears

upward

Ortiz, 966 F.2d

_____

denied, 61 U.S.L.W.
______

adjustment

was

707, 717 (1st

3479 (U.S.

Jan. 11,

____________________
6.

We are not

unmindful of

our recent

decision in

United
______

States v. Moran, No. 91-1772 (1st Cir. Jan 20, 1993).

______
_____
However, we view the facts of this case quite differently
than those in Moran.
_____
-1414

1993) (No. 92-6552).

To meet its burden, the government must

demonstrate that Castellone exercised "some degree of control

over others involved in
must

have been

the commission of the offense

responsible

for organizing

purpose of carrying out the crime."

897

F.2d

1217, 1220

record devoid
On appeal, the

(1st Cir.

of evidence

Thus,

the

when and where Chaput and

said of

Here, we

find the

or organization.
determined

where sales took place, prices,

decisions on those matters

respect to

1990).

of such control

argument

the

United States v. Fuller,

_____________
______

government argues that Castellone

who purchased, when and

profit.

others for

or he

goes,

it

was

and

Castellone's

that effectuated his control over

others presented themselves.

the first part of

the argument, the

any independent, street-level

dealer.

With

same can be
In

fact, no

street-level drug sale could ever be made without a customer,

a time and

location for the sale, and a price.

the profit

Castellone determined was his

Furthermore,

own, not Chaput's.

Moreover, the second part of the argument is unsubstantiated.

There

is simply

control

over the

no evidence

that Castellone

movement of

Chaput--or

exercised any

anyone else.

In

ruling in favor of the increase, the trial court stated:

It's not necessary that a [d]efendant be
the CEO of the operation to be in a
managerial role.
Here, there is no
question
but
that
the
Defendant
negotiated the first two transactions and
began the negotiations for the third
transaction, and along with Mr. Chaput,
the transactions were carried out.
It
-1515

seems to me those facts do establish

managerial role on his part. . . .
Conspicuously lacking from the
any finding
over

that Castellone

others--that

within the meaning

is,

the

trial

court's analysis, however, is

organized or
he "managed"

of section 3B1.1(c).7

stated that an upward

than

that

exercised control
or

"organized,"

We have

recently

BOL adjustment "must be based

judge's

hunch, no

matter

how

on more

sound

his

instincts or how

sagacious his judgment."

707, 717 (1st Cir. 1992).

Ortiz, 966
_____

F.2d

The evidence in this case does not

support such an adjustment.

Appellant's sentence is vacated and the case is
Appellant's sentence is vacated and the case is
___________________________________________________
remanded to the district court for resentencing in accordance
remanded to the district court for resentencing in accordance
_____________________________________________________________
with this opinion.
with this opinion.
__________________

____________________
7. By comparison, Chaput, who
managerial
role
adjustment,
subordinates at the third sale.
-1616

also
was

received a two-level
accompanied
by his