USCA1 Opinion

December 15, 1994

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2453
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID PHELAN,
Defendant, Appellant.
____________________
No. 92-2454
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN LILLIS,
Defendant, Appellant.
____________________
No. 92-2455
UNITED STATES OF AMERICA,
Appellee,
v.

RAYMOND LUCE,
Defendant, Appellant.
____________________

ERRATA SHEET
ERRATA SHEET
The opinion of this court issued

on December 6, 1994,

is amen

as follows:
On page 4,
"undertaken".

last line, replace the

word "undertake" with the w

December 6, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 92-2453

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID PHELAN,

Defendant, Appellant.

____________________

No. 92-2454

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN LILLIS,

Defendant, Appellant.

____________________

No. 92-2455

UNITED STATES OF AMERICA,

Appellee,

v.

RAYMOND LUCE,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

Roger A. Cox, by Appointment of

____________
Lillis.
David Phelan on brief pro se.
____________

the Court, for appellant

Step

Raymond Luce on brief pro se.

____________
Ronald Cohen, by Appointment of the
____________

Court, on brief for appell

Raymond Luce.
George W. Vien, Assistant
_______________
John Pappalardo, United States
_______________

United States

Attorney, with whom

Attorney, and Donald K. Stern,

_______________

Uni

States Attorney, were on briefs for the United States.

____________________

____________________

BOUDIN,
appellant
phencyclidine

Circuit Judge.
______________
Stephen
("PCP"

Lillis'
or

"angel

From

1988

drug
dust")

through

organization
in

and

1991,
sold
around

Cambridge, Somerville and Charlestown, Massachusetts.

usually

smoked

substances.

after

it

has

been

Lillis and his associates

liquid

form, and

then treat

making

it smokable.

diluted

with

PCP is
other

would procure PCP in

mint leaves

with

the liquid,

These treated mint leaves would be sold

in packages to customers who contacted the ring by calling an

electronic-beeper "800"
for the ring--such as

telephone number.

A street

dealer

co-appellants David Phelan and Raymond

Luce--would return the call

and arrange for a place

to meet

to complete the sale.

Lillis, Phelan,
April 1992.
possess

stood trial together

in late

All were convicted of one count of conspiracy to

PCP

with

841(a)(1), 846.
of

and Luce

possession

intent

to

distribute.

Lillis was also convicted

with

intent

to

21

U.S.C.

of several counts

distribute,

21

U.S.C.

841(a)(1), and Luce was convicted of one such count.

classified as

an organizer, U.S.S.G.

262-month sentence,
largely

due to

3B1.1(a), received a

and Phelan a 151-month

the

"career offender," see

___

trial judge's
U.S.S.G.

360-month sentence.

-3-3-

Lillis,

finding

sentence.
that he

Luce,
was

4B1.1 et seq., received a

________

On this
sentence.
that the

appeal, each

Lillis' target

of the appellants

challenges his

is the trial judge's determination

Lillis organization distributed

or possessed

with

intent to distribute between three and ten kilograms of

PCP.

Findings as

to drug

quantities are

them only for clear error.

1296, 1304 (1st Cir.),
"[T]he

sentencing

what data is, or

1287

court has

have

United States
_____________

Cir.

to determine

1992).

be used

v. Tardiff, 969
_______

Yet,

because

F.2d

guidelines

dramatically depending upon drug quantity, we

stressed that

district

making quantity assessments.

F.3d 1161, 1196

broad discretion

379 (1994).

is not, sufficiently dependable to

(1st

sentences vary

we review

United States v. Whiting, 28 F.3d

_____________
_______

cert. denied, 115 S. Ct.

____________

in imposing sentence."
1283,

factual, and

(1st Cir.

courts must

exercise care

in

United States v. Sepulveda, 15

_____________
_________
1993), cert. denied,
____________

114 S.

Ct.

2714 (1994).
Here, the
between

district court attributed

three and

containing PCP.

ten kilograms

U.S.S.G.

to the

of a mixture

2D1.1(a)(3),

(c).

conspiracy
or substance
The district

judge

based his findings on the evidence presented at trial.

At sentencing,
detail.
trial

he set

forth and

The district
testimony of

organization
Knapik's

court

explained his

relied most

Robert Knapik,

through

much

testimony,

the

of

heavily upon

a dealer

1988

district

findings in

and

in the

1989.

court

found

the

Lillis

Based

on

that

the

-4-4-

conspiracy had in its possession two one-gallon containers of

PCP.

Using

the unchallenged

figure

of 2.64

kilograms

gallon, this is obviously more than three kilograms.

Lillis' claim that the district court erred is based
a misreading
"throughout
observed
that

of the

Knapik testimony.

Knapik

the entire course of [his]

one liquid gallon of

statement, Knapik

PCP."

made

testimony, he testified that

agreed that

stay there [he] only

But immediately before

clear that

solely about a Reading location

on

he was

used by the ring.

he saw a gallon of

testifying
In

other

PCP at what

was apparently a Cambridge

We

note

also

sentencing

location also used by the

that none

hearing when

of

the

the

parties

ring.

objected at

the

said that

two

district court

gallons were proved.

Even

if

altogether,
outcome.

it

observed

appears

that

treated

mint

gallon--would

minimum.

Further,

figures,

there

witnesses

at trial

this

leaves,

more
while

was

about

modest, as

an

one
would

liquid
not

gallon

affect

the

presence of at least five

which--together

with

one

than exceed

the

three kilogram

these

the

most

were

considerable

conspiracy that made the

not

only

He also testified to the

pounds of
liquid

Knapik

the

scope

testimony

specific

from

and duration

other
of

the

three kilogram figure plausible, if

estimate of

the

conspiracy's scale

of

operations.

-5-5-

Luce and Phelan argue

dealers

that they were essentially street

and not responsible for the large amount of PCP that

the organization
conspirator
acts and

Under the Sentencing

is responsible

for "all

omissions of others

undertaken

criminal

commission of
that

sold.

reasonably foreseeable

in furtherance of

activity,

that

detection or

or

in

the

course

responsibility for

1B1.3(a)(1)(B).

the jointly

occurred

the offense of conviction,

offense,

Guidelines, a

during

the

in preparation for

of attempting

that offense."

to

avoid

U.S.S.G.

This guideline language was added

effective

November 1, 1992, after the appellants were sentenced, but so

far as pertinent it is merely a clarification of more oblique
earlier

language

sentenced.

in

force

when

Luce

and

Phelan

See United States v. Valencia-Lucena,

___ ______________
_______________

were

988 F.2d

228, 234 n.5 (1st Cir. 1993).

The

organization's

foreseeable to

both

handled a large volume

ring

was

activities

Luce and

Phelan.

of PCP, the

comparatively small,

were

reasonably

Although

the

number of people in

and the

small size

ring
the

of this

group suggests that each of its members knew generally of the

organization's
distributing.
and

York to

and

the

amount

of

PCP

it

was

Moreover, Knapik saw Phelan deliver liquid PCP

treated mint

three times,"
New

scope

leaves to

and testified
Massachusetts.

the Reading

apartment "two

that Phelan delivered

Knapik observed

-6-6-

to

PCP from

Phelan making

anywhere from 200 to

district court was

1,000 sales for the organization.

entitled to believe that Phelan

The

had more

sales than those seen by Knapik.

For his part,

Luce was an

worked several shifts for

a role in preparing

important street dealer

the Lillis organization and played

the PCP for market.

Luce's former girlfriend, gave

saw Luce assist Lillis

who

Theresa Marrapodi,

grand jury testimony that she

in treating the mint leaves.

Knapik

testified that Luce worked a regular evening shift as well as

Saturdays,

and

dealing with

a number

him.

While

of

customers

testified to

their

do not add

up to

these purchases

three kilograms, they indicate that

Luce worked at the heart

of the Lillis organization.

Luce

challenges the

court's use

of Marrapodi's

grand

jury testimony in sentencing, since she was not presented for

cross-examination.
sentencing.
(1st

Cir.

But reliable

hearsay

can

be used

at

United States v. Zuleta-Alvarez, 922 F.2d 33, 36

_____________
______________
1990), cert. denied, 500
_____________

particular, it is settled that district

U.S.

927 (1991).

In

judges may use grand

jury

testimony

reliability.
914-15

provided

it

has

sufficient

See United States v.

___ ______________

(1st Cir.

1993).

Williams--testimony given
________

The

indicia

Williams, 10
________

factors

under oath

F.3d 910,

that we

and in a

of

listed

in

formal grand

jury proceeding--apply with equal force here.

-7-7-

Luce also contends that the trial judge acted unlawfully

in sentencing him as a "career offender" pursuant to U.S.S.G.
4B1.1.

He points to

that "[n]o person

this
reason

part
of

or

sentenced

the

to

more prior

trial . . . the United States

with

be relied

which states

of an offense

unless

attorney files an

upon."

under

increased punishment

convictions,

court . . . stating

conviction to

851(a)(1),

who stands convicted

shall be
one

21 U.S.C.

in

writing

Since

by

before

information
the

previous

no information

was

filed, and since he received a greater sentence due to career

offender

status,

Luce reasons

that

his

sentence must

be

vacated.
Section 851(a)(1)

does not apply to

under the Sentencing Guidelines but

statutory
_________

maximum

conviction.

or

minimum

sentence increases

only to increases in the

penalty

based

consider the issue agrees.

Koller,
______

956

Whitaker,
________
Ct. 977

prior

United States v. Sanchez, 917 F.2d 607, 616 (1st

_____________
_______

Cir. 1990), cert. denied, 499 U.S. 977 (1991).

____________
to

on

F.2d 1408

(7th

See, e.g.,
_________
Cir. 1992);

Every circuit

United States v.
_____________
United States v.
______________

938 F.2d 1551 (2d Cir. 1991), cert. denied, 112 S.

____________
(1992).

Here, Luce's

indictment charged

him with

conspiracy

to possess more than one kilogram of PCP with the

intent

distribute

to

statutory

minimum

of

it,

a felony

ten

years

-8-8-

and

that
a

carries
maximum

with
of

life

imprisonment,

21

U.S.C.

841(b)(1)(A)(iv),

and

he

was

sentenced within that range.

Finally, the district

court did not err

by refusing to

sever Luce's trial from that of Phelan and Lillis.

We review

the trial judge's refusal to sever "only for a manifest abuse

of discretion resulting in a miscarriage of justice."
States
______

v. Welch, 15 F.3d
_____

1202, 1210 (1st

denied, 114 S. Ct. 1661 (1994).

______
showing of unfair prejudice
was

plausibly

charged,

the

Luce

United
______

Cir. 1993), cert.

_____

has

made

no

such

and, because a single conspiracy

testimony

against

Lillis and

Phelan would generally have been admissible against Luce even

if

his trial

Innamorati, 996
__________

had

been

severed.

F.2d 456, 469 (1st Cir.),

S. Ct. 409, 114 S. Ct. 459 (1993).

Affirmed.
________

See
___

United States
______________

v.

cert. denied, 114

____________

-9-9-