USCA1 Opinion

November 16, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2471
UNITED STATES,
Appellee,
v.
WESLEY GONZALEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
____________________
Barbara A.H. Smith on brief for appellant.

__________________
Edwin J. Gale, United States Attorney, and Zechariah Chaf
______________
_______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
guilty

to

Appellant Wesley

one-count indictment

possession of a

which

Gonzalez

pleaded

charged

him with

substance containing a detectable

amount of

cocaine with intent to distribute in violation of 21 U.S.C.

841(a)(1).
the

He appeals two aspects of the sentence imposed by

district

court

under

Guidelines (U.S.S.G.).
any

substantial

the

United

States

Because the appeal does

questions,

we

Sentencing
not present

summarily

dispose

that

district

of

it

pursuant to Local Rule 27.1.

1.
improperly fined

Appellant

claims

him for the

the

cost of his five-year

court
term of

supervised release.
paid in

This fine amounts to $6,918 and is to be

monthly installments

released.

According

of $115.30

once appellant

to appellant, U.S.S.G.

is

5E1.2(i) does

not permit such a fine in his case because the district court
"waived" the

assessment of a punitive fine.

U.S.S.G.
impose

fine

in all

establishes that
become able

5E1.2(a) states that "[t]he

cases,

he is unable

to pay

except
to pay

any fine."

court shall

where the

defendant

and is not

likely to

U.S.S.G.

5E1.2(i) states

that [n]otwithstanding . . . the provisions of subsection (c)

[list

of

minimum

subsection (f)

and

maximum

[waiver or

fines],

imposition of

but

subject

lesser fine],

to
the

court shall impose an additional fine amount that is at least

sufficient to pay

the costs to the

supervised release ordered."

F.2d
not

supervised

. .

In United States v. Corral, 964

_____________
______

83 (1st Cir. 1992), we held

impose a duty

government of any .

to pay for the

that "a district court may

costs of incarceration or

release if the defendant is indigent for purposes

of

[punitive] fine

5E1.2(a)."

under

Sentencing Guidelines

Id. at 84.
___
Corral is of no avail
______

reason

that the

district

punitive fine under

to the
which

section

following words:

court,

U.S.S.G.

contrary rests
the district

to appellant for the

in

5E1.2(a).

upon page 5

court

fact,

did

impose

the

"Fine is waived or is

box

on

proposition

the

that a

conveniently

"inability
punitive

to

pay"

fine

ignores what the

form on

preceding

the

below the guideline

range, because of the defendant's inability to pay."

focussing

Appellant's claim

of the Judgment

checked

simple

language

was "waived,"

for

the

appellant

district court judge

the sentencing hearing concerning a fine under

By only

said at

5E1.2(a):

As far as the fine is concerned, it

does not appear you have substantial
assets. You have some assets and based
on that, the Court will impose a fine in
_______________________________
the amount of one hundred dollars and a
__________________________________
special assessment in the amount of fifty
dollars as required by law.
Transcript of Sentencing Hearing,

at 17-18 (emphasis added).

Indeed, page 4 of the Judgment form specifically

the total fine

of $7,018 is composed

-3-

states that

of a fine of
____

$100 and

the cost of

supervised release of $6,918.

Thus, this claim

is without merit.
2.

Appellant's second assignment of error concerns

the conversion

of $29,990

into 1,000

sentencing purposes under U.S.S.G.

This

sum was

appellant's

part

of the

apartment

Administration

(DEA).

by

during a

the

Drug

seized were 3

bags, three

telephone, a shoe box filled

sifters, a spoon

latter three

items were

them;

undisputed that

it is

2D1.1.
search of

Enforcement

plastic sandwich

bags containing a total of 17.6 grams of 80% pure

pager, a cellular

cocaine for

1B1.3(a)(2) and

cash seized

conducted
Also

grams of

cocaine, a
with plastic

and a triple-beam scale.

found

to have
all of

The

cocaine residue

the seized

on

items were

"common" implements of the cocaine trade.

As for

the cash,

DEA agents

found $4,450 in

bedroom and $3,990 on a table in the living room.

the

They also

discovered $26,000 hidden beneath

a stereo speaker.

the total

accepted appellant's claim

amount, the government

Out

of

that $4,450 represented the settlement of an insurance claim.

This

left the

$29,990 which

the

Presentence Report

(PSI)

concluded represented the proceeds of sales of 1,000 grams of

cocaine.
Appellant
calculation.

did

not object

Normally, such a

See United States v. Dietz,

___ _____________
_____

at

sentencing

to this

failure results in a waiver.

950 F.2d 50, 55 (1st Cir.

1991)

-4-

("in connection with

sentencing as in other contexts,

. . .

arguments not seasonably addressed to the trial court may not

be

raised

for

the

first

time

in

an

appellate venue").

Appellant urges, nonetheless, that where a fundamental

in

the application

rights,
justice."
(1st

review

is

of the Guidelines
proper

to

See United States

___ _____________

prevent

error

affects "substantial"
a

"miscarriage

v. Agoro, 996 F.2d

_____

of

1288, 1291

Cir. 1993) (where government agreed with defendant that

sentence

imposed

by district

guideline range, court

court exceeded

the allowable

would address claim raised

for first

time on appeal).
This
arguments

fall

is

not

short

such a

case.

of demonstrating

Indeed, appellant's
any
___

defect

in the

court's

sentencing calculations.

1B1.3(a)(2),

Pursuant

appellant is responsible for all acts that were

"part of the same course of

as the offense

conduct or common scheme or plan

of conviction. . .

."

Figueroa, 976 F.2d 1446, 1460 (1st

________
113 S. Ct.

1346 (1993).

may take into

whether or not

`specified in the

as the

drugs

are

defendant's conviction.

See United States v.

___ ______________

Cir. 1992), cert. denied,

____________

When applied to

district court

long

to U.S.S.G.

drug offenses, the

account "the amount

part of

of drugs,

count of conviction,'"
the

conduct underlying

United States v. Tabares,

_____________
_______

405, 410 (1st

Cir. 1991) (quoting

(backg'd)).

Further,

in

1B1.3(a)(2) &

determining

so
a

951 F.2d
comment.

defendant's base

-5-

offense level where

scale

of

quantity of

the

"the amount seized does not

offense,

the

the controlled

commentary (n.12).

court

shall

substance."

reflect the

approximate
U.S.S.G.

the

2D1.1,

Appellant argues

that

the

government

failed

to

establish by a preponderance of the evidence that there was a

sufficient
which he
that

connection between the $29,990 and the offense to

pleaded guilty.

the PSI

Specifically,

merely concluded

that

appellant contends

the money

proceeds from other drug transactions without

evidence of
Instead,
the

actual sales

appellant asserts,

17.6 grams

resulted,

or any

found in

he goes on,

the only concrete

Cir.

1989), does

converting

the

This

in a finding that

only a "very small scale operation."

our decision in

presenting any

evidence of

his apartment.

control

cash into

and

1,000

a conspiracy.
evidence was
should have

he was involved in

Thus, he concludes that

United States v. Gerante, 891

_____________
_______
not

represented

an

F.2d 364 (1st

"approximation"

grams of

cocaine

by

was not

permitted.
In

Gerante, defendant was arrested while he was in

_______

possession of 4.98 kilograms of cocaine.

of

A subsequent search

his home revealed small additional quantities of cocaine,

five loaded guns

agents, defendant

and $68,000.
stated, among

Upon being

questioned by DEA

other things,

that he

had

been trafficking in multi-kilogram amounts of cocaine for six

-6-

months and that the $68,000 represented proceeds from a prior

deal.

We

held that the district

the drugs
course
clearly

purchased with the

of conduct

under

erroneous.

conversion

of

$68,000 were part of

U.S.S.G.

891

the cash

F.2d at
into

permitted by the Guidelines, in

drugs seized did

court's determination that

the same

1B1.3(a)(2)
368.

As

quantity

was

not

a result,

the

cocaine

was

of

part, because the amount

not reflect the scale of the

offense.

of
Id.
___

at 369 (citation omitted).

Appellant's
unavailing.
events

is

effort

to

Conspicuously absent
the

admission,

sentencing hearing,

made

that the

from his
by

his

Gerante
_______

version of
attorney

$29,990, in fact,

proceeds from sales of cocaine.

Hearing, at 4, 14 (in

distinguish

at

is
the
the

represented

See Transcript of Sentencing

___

arguing for a reduction for acceptance

of responsibility, counsel emphasized the fact that appellant

did

not "fight"

the conversion

of the

money into

sums of

cocaine and acknowledged that the money appellant made to buy

cocaine put him in a higher guideline range).
this admission
was

part of

As in Gerante,
_______

provides sufficient evidence that the $29,990

the same

course of

conduct as the

offense of

conviction.

See United States v. Figueroa, 976 F.2d at 1460___ _____________

________

61 (where defendants in taped

that they
day,

sold $6,000

no clear error

telephone conversations stated

worth of "dime"

bags of

in approximating the

cocaine per

amount of cocaine

-7-

based on "the

sums of money admittedly

received") (footnote

omitted).
Finally, we

reject appellant's

argument that

the

result of the conversion (which raised his base offense level

from

12

to

26)

disproportionate" and

rendered

his

sentence

"inequitable."

Similar increases

sentencing ranges due to the addition of

not included in

1990)

(despite

cocaine,

seizure

court's

of

addition

estimated

quantities

previously

mailed

of

packages

in

quantities of drugs

the offense conduct have been

e.g., United States v. Sklar,

____ _____________
_____

"grossly

upheld.

See,
___

920 F.2d 107, 112-14 (1st Cir.

only

one

for

sentencing

cocaine
--

which

package

contained

containing

purposes
in

essentially

of

eleven
doubled

guideline range --

not clearly erroneous); United States v.

______________

Vazzano, 906 F.2d 879, 884

_______
amount

(2d Cir. 1990) (addition of extra

of cocaine defendant

sold for

told informant he

had recently

purposes of calculating base offense level held not

clear error; addition almost tripled guideline range).

Appellant adds
provided

the claim

ineffective assistance

that

his trial

in violation

of

counsel
the Sixth

Amendment by, among other omissions, failing to object at the

sentencing
1,000

hearing to

grams of

bordering on
ineffective

the conversion

cocaine.

the

"We have

monotonous that

assistance cannot

make

of

the $29,990

held with
fact-specific
their debut

into

a regularity
claims
on

of

direct

-8-

review of criminal convictions,

but, rather, must originally

be presented to, and acted upon by, the trial court."

States
______

v. Mala,
____

October 27,

No. 91-2229,

1993).

Because

slip

op. at

9-10 (1st

this claim may turn

United
______
Cir.

on factual

matters outside of the record now before us, the claim is not
ripe for appellate review.
We,

therefore, affirm
______

the judgment

of conviction

without prejudice to appellant's right to file a motion under

28

U.S.C.

2255

concerning

assistance of counsel.

his

claims

We express no opinion

of any such claims.

-9-

of

ineffective
on the merits