USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 95-1883

UNITED STATES OF AMERICA,

Appellee,

v.

LOUIS ANDRADE,

Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S.District Judge]

__________________

____________________

Before

Torruella, Chief Judge,

___________
Cyr and Lynch, Circuit Judges.
______________

____________________

Daniel J. Johnedis on brief for appellant.

__________________
Donald K. Stern, United States Attorney,
_______________

and Ralph F. Boyd, J

_________________

Assistant United States Attorney, on brief for appellees.

____________________

August 26, 1996

____________________
LYNCH, Circuit Judge.
LYNCH, Circuit Judge.
_____________

Louis Andrade was

of possessing cocaine base with intent

convicted

to distribute. He was

sentenced to

168 months in prison.

He appeals from both his

conviction and his sentence.

Andrade's main argument is that the evidence seized

when the car in which he

from

the Boston

suppressed.

Anti-Gang

Violence Unit

there then

suspicion.

existed

been

no probable

For these charges, he

cause or

reasonable

His argument is foreclosed by the Supreme Court's

decision in Whren v.
_____

decided

should have

only a pretext to search the car in

of proving more serious charges.

says,

officers

He says that the ostensible reason for the stop,

a traffic violation, was

hope

was riding was stopped by

after

United States, 116 S. Ct.

_____________

this case

was

1769 (1996),

initially briefed.

He also

argues that the 14.21 grams of cocaine base with which he was

caught

was so

small an

amount that

infer

that he

had the

needed intent

argument

his

is without merit.

sentence,

severity

cocaine

downward

of

his

argument

sentences

is foreclosed.

As for

it is

to distribute.

crack

That distinction

departure in sentence.

enhancement of his sentence

the

distinction

cocaine

and

does not

There was no

-33

in

powder

permit a

error in the

for his attempt to shoot

the arresting officers.

This

Andrade's challenges to

based on

between

unreasonable to

one of

We recite

have found them.

an

the facts

as the jury

could reasonably

Andrade was a passenger in a car which made

ill-considered and

illegal U-turn

in front

of oncoming

traffic on Columbia Road in Boston on February 20, 1994. This

maneuver was

and Linskey

observed at around

of

the

8:00 p.m by

Anti-Gang Violence

Unit.

Officers Byrne

Byrne

and

Linskey were patrolling the area in an unmarked car driven by

Officer

Freeman

of

the

same

unit.

The

intelligence on gangs, leading to arrests

the Roxbury, Mattapan,

Unit uses motor

Unit

gathers

of gang members in

and Dorchester areas of Boston.

vehicle violations as a

The

tool to investigate

gang activities.

The officers followed the car, and saw three adults

in the

vehicle.

taillight.

They also

As the

car

saw that the

slowed to

car had

stop in

building on Seaver Street, the officers turned

wag

light

Freeman

and then

approached the

identified himself

and

car

asked

Wright, for

her license, while Officer

front

passenger,

seat

Terrell

a broken

front

on their wig-

on foot.

the

of a

Officer

driver,

Sandra

Linskey detained the

Andrade

(Louis

Andrade's

brother), who had

emerged from the

car. As Officer

Freeman

shone a flashlight into the car, he saw, in the center of the

front seat, a plastic

substance which looked

bag containing an off-white, rock-like

like crack cocaine.

He leaned

into

-44

the car and picked up the bag and then signalled to the other

officers to handcuff Wright and Terrell Andrade.

Officer Freeman

passenger

door, next

to

While Officer Freeman

was

sitting stiffly

Andrade ignored

take

then went to open

where Louis

his left

Officer Freeman's

his hand from behind

pistols,

and

remove his hand

from behind

left

behind

street, a

crack

bag containing

cocaine.

handcuff Andrade,

When

hand

saw that Andrade

behind his

and

a substance

Officer Freeman

back.

that he

Drawing their service

Byrne yelled

his back.

his back

sitting.

several commands

his back.

Officers Freeman

hand from

Andrade was

spoke to Andrade, he

with

the right rear

at Andrade

Andrade pulled

threw out,

then

Andrade lurched backward into

his

onto

which appeared

to

the

to be

attempted

to

the car and

tried to reach down to the floor.

into

the

car

Andrade's hand.

toward Andrade,

he

suddenly

He screamed "gun," pushed

Andrade, saw a flash,

Freeman had been

As Officer

and heard a noise.

shot (he

Freeman leaned

saw

a gun

in

himself away from

Believing Officer

was not), Officer

Byrne fired

single shot at Andrade, hitting him in the leg and ending the

confrontation.

Officer Linskey then pulled

and asked

gun, but

him where the

gun was.

Sandra Wright yelled

ankles." The officers did so and

-55

Andrade out of the car

Andrade denied

"check his ankles;

having a

check his

found the gun, not on Louis

Andrade's ankle,

but on the

Andrade had been sitting.

in the

gun's chamber,

floor of the car

A spent cartridge was found jammed

indicating that

fired, and, fortuitously, that

fired.

in

near to where

the weapon

had been

no additional rounds could be

An upset Sandra Wright continued to scream "the dude

the back shot at

a cop; the

dude in the back

shot at a

cop; I could have gotten shot."

Accompanying

Louis

Andrade

on

the ride

to

the

hospital,

$260.00,

Linskey

in

observed

mostly ten

Andrade

attempting

and twenty

to

dollar bills,

remove

from his

pants pocket.

Linskey later found another plastic bag in the

same pocket.

That bag,

base

("crack");

totalled

like the others,

the two

bags

connected

some 14.21 grams in weight.

contained cocaine

to Louis

Andrade

That amount of cocaine

is enough for 140 "jums" (doses) or "dime bags."

In a

four

count indictment,

with possession with intent

unlawful

possession by

ammunition,

with

and

in relation

a convicted

of

number, and

to

a drug

charged

to distribute cocaine base, with

possession

obliterated serial

Andrade was

felon of a

firearm

with using a

trafficking

firearm and

bearing

an

firearm during

crime.

The

jury

convicted on

841(a)(1)

district

the drug

and

possession

deadlocked

court denied

on

the

subsequent

acquittal and for a new trial.

count under

firearms

motions for

21 U.S.C.

counts.

The

judgment

of

Andrade was sentenced to 168

-66

months in prison

and four years

supervised release.

After

sentencing, the

court dismissed

the firearms counts

on the

government's motion.

II

Andrade makes three attacks

on his conviction.

argues that the trial judge erroneously denied his

suppress

the

evidence

seized

pretextual traffic stop of

passenger."

He

distribute

the

conviction, and that

the

"warrantless,

was

that the

evidence of

insufficient

to

the thinness of that evidence

entitles him to a new trial.

these arguments prevails.

A. The Suppression Motion

_________________________

motion to

the car in which defendant

also says

drugs

during

Although ably

He

was a

intent to

support

at least

briefed, none of

Andrade

seized during the

pretextual.

filed

car stop on the

to suppress

officers said,

suggest

its

was not pretextual but was

to investigate

ruling to

a second

stop was

an evidentiary hearing

why the

"sharp, harsh U-turn" into oncoming traffic.

modified

the evidence

theory that the

The district court held

and determined the stop

the

a motion

note

motive for

that

car had

made a

The court later

there was

the stop,

made, as

evidence

but that

to

under the

objective test of United States v. Miller, 589 F.2d 1117 (1st

_____________
______

Cir.

1978), cert.
_____

denied,
______

motive was irrelevant.

440 U.S.

958 (1979),

any mixed

Our review of the ultimate conclusion

-77

as to whether the

Fourth Amendment was violated is

de novo.
__ ____

Ornelas v. United States, 116 S. Ct. 1657, 1662 (1996).

_______
_____________

In support of his claim that the motion to suppress

should have

rejected

been granted, Andrade relies on

by the

Supreme Court

Supreme

Court in

affirmed the denial

Whren.
_____

of a

a theory firmly

In

Whren,
_____

motion to

the

suppress

drugs

seized when

violation.

the police

stopped a

car for

a traffic

The Court held that the temporary detention of a

motorist upon probable cause to believe the traffic laws have

been

violated does

prohibition on

would not

law

Court rejected

Fourth

even

the motorist absent

objective.

the Fourth

taken in certain

transgress the

unreasonable seizures,

have stopped

enforcement

Because

not

Whren,
_____

116

Amendment allows

any

inquiry into

the

if the

officer

some additional

at

1774.

certain actions

to be

circumstances, regardless

S.

Amendment's

Ct.

of motives,

officers'

the

subjective

intent or into what a "reasonable officer" would have done in

similar

circumstances.

foreclosed any

Id.
___

at

1775.

The

Court

thus

argument that ulterior motives can invalidate

an otherwise justified traffic stop. Id. at 1774.

___

Here, the illegal

cause to stop

the car

Andrade does not

U-turn plainly provided probable

for violating the

argue otherwise.

-88

Under

traffic laws,

and

Whren, the inquiry

_____

stops there, as does

Andrade's appeal on this point.1

Id.;
__

see also United States v. Abernathy, 83 F.3d 17, 19 (1st Cir.

___ ____ _____________
_________

1996) (officers on

undercover investigatory narcotics detail

may lawfully make traffic violation stop).

B. Evidence of Intent to Distribute

___________________________________

Andrade's

contention

that the

remaining attacks

evidence did

intent to distribute the cocaine

were sufficient to show

use.

He challenges

Rule 29

are

not show

premised on

that he

base, even if the

that he did possess it

had an

evidence

for personal

the district court's denial of

motion for a judgment

his

of acquittal and his

both his

Rule 33

motion for a new trial.

1. Motion for Judgment of Acquittal

________________________________

In

drawing

a sufficiency challenge,

all

reasonable

prosecution,

rational

reasonable doubt.

we determine whether,

inferences

jury

in

could find

favor

of

guilt

the

beyond

United States v. Luciano-Mosquera, 63 F.3d

_____________
________________

____________________

1.

In his reply brief, Andrade argues that the potential for

discriminatory
requires courts

treatment of members

of minority communities

to invalidate pretextual traffic

suggests that circumstantial

Byrne's description of

evidence, particularly

the occupants of the car

indicates that racial animus was at work

argument

was

pointed out

rejected in

Whren,
_____

here.

where

intentionally discriminatory application

not the

He

Officer

as "black,"
This line of

the Supreme

that "the constitutional basis

Equal Protection Clause,

stops.

Court

for objecting to

of the laws

is the

Fourth Amendment."

Whren,
_____

116

S. Ct. at 1774.

In any event,

we need not pursue this

issue further; it was not raised in Andrade's principal brief

to this court and is therefore waived.

See United States v.

___ ______________

Edgar, 82 F.3d 499, 510 (1st Cir.), petition for cert. filed,
_____
________________________
65 U.S.L.W. 3110 (U.S. July 16, 1996)(No. 96-5082).

-99

1142,

(1996).

1149(1st

Cir. 1995),

cert. denied,
____________

116 S.

Ct. 1879

It would,

direct

evidence of

drugs in his

of course,

be unusual

a defendant's

for there

intent to

possession where the defendant

to be

distribute the

is not observed

dealing drugs but instead is merely found with the drugs.

a result, juries,

may

be

and courts, have to decide what inferences

reasonably drawn

evidence. See United States

___ _____________

(1st Cir. 1993).

the

As

from the

available circumstantial

v. Echeverri, 982 F.2d 675,

_________

678

That evidence may include information about

amounts and types of

accompanying accoutrements,

the drugs possessed

such as

and about the

the sums of

money also

found, whether there is drug weighing, cutting, and packaging

paraphernalia,

whether a weapon is used, and the like.

e.g.,
____

678-79

id.
___

at

(considering

layout

of

See,
___

defendant's

apartment, amount

of cocaine

found, and

the presence of

scale and a ledger as corroborative of intent).

To

support

his

insufficiency

argument,

relies

upon United States v.

_____________

1995).

There, this court vacated a conviction for possession

of

powder

evidence was

cocaine with

Valerio, 48 F.3d
_______

Andrade

intent

insufficient to

to

58 (1st Cir.

distribute because

prove that the

the

defendant knew

about the large quantities of cocaine which were hidden in an

apartment in which

she was

a short-term guest.

Id. at
___

64.

The court found that the defendant could only have been found

-1010

to be

aware of 14.83

grams of cocaine hidden

shoe;

this was "not large

enough" a quantity

in her baby's

to support an

inference of distributive intent. Id.2

___

This

is a

different case and

affirming the jury verdict.

cocaine

which

hydrochloride),

relies

not

no trouble

To start, this case involves not

powder, but cocaine base

Andrade

we have

involve

crack cocaine

or "crack."

powder

The cases on

cocaine

(cocaine

(cocaine base)

which is

more

potent

legislative

and

is

history

indicates that

sold

of

in

the

crack's greater

that offenses involving crack

do those

much

smaller

federal

drug

potency is a

Cir. 1990)(compiling statements

hearing testimony of

primary reason

receive higher penalties

Buckner, 894
_______

cocaine.

F.2d 975,

of members

drug abuse experts).

The

laws repeatedly

involving similar amounts of powder

e.g., United States v.

____ ______________

doses.

than

See,
___

978-80 (8th

of Congress

and

For example, when

____________________

2.

Andrade

also draws

our

attention to

United States
_____________

v.

Martinez, 44 F.3d 148 (2d Cir. 1995), in which a panel of the

________
Second

Circuit (over Judge Walker's dissent) initially found

the evidence

of intent to distribute

insufficient where the

defendant

possessed 3.5 grams of powder

one-half ounce
151.
of

of "cut," a one gram scale, and a gun. Id. at

___

However, the panel later

the

case and

decided

to

because "any amount of drugs,

conviction

when there

distribute."
1043

reconsidered its disposition

affirm Martinez's

the scale,

itself

provided strong

116 S.

and particularly

the inference

evidence of

v. United States, 54
______________

cert. denied,
____________

"cut,"

conviction

however small, will support

is additional

See Martinez
___ ________

(2d Cir.),

supported

cocaine, as well as

that the

defendant was

drug trafficking. Id.

___

-1111

(1995). The

the firearm,
intent to

intent to
F.3d 1040,

Ct. 545

evidence of

which "by

distribute,"
engaged in

Congress

disapproved

amendments

that

would

proposed

have

Sentencing

equalized

the

Guidelines

penalties

for

offenses involving crack and powder cocaine, the House Report

noted the "unique

often

with

nature of the

entails trafficking

powder cocaine."

Sess. 3

(1995).

in much

H.R.

Thus,

crack cocaine trade,

smaller

Rep. No. 272,

whether

or not

which

quantities than

104th Cong., 1st

14.21

grams is

"small" amount of powder cocaine, it is not a small amount of

crack cocaine.

Nor was

jury had to

unadorned evidence of amount

go on.

Kevin Buckley, who had

The government's

all that the

expert witness,

been involved in more than

Sgt.

1000 drug

investigations, testified

Andrade possessed

that the

could make

amount of

more than

crack cocaine

140 "jums,"

with a

street value of at least $1400; that he had never seen a mere

user with more

than 8-10 "jums" at

typically use all of

a time; that

mere users

their cash to feed their habit;

that a

mere user usually smokes all of the crack he can obtain right

away;

and that, in Boston, crack is

$20 bags.

the crack.

Also, Andrade had no implements

This was

the presence of

from which

Cf.
___

usually sold in $10 and

enough, even without

the firearm.

to draw

The jury

the inference

United States v. Bergodere,

_____________
_________

1994)(affirming

with him to smoke

intent finding

consideration of

had ample

evidence

of intent

to distribute.

40 F.3d 512,

518 (1st Cir.

where total value

of heroin

-1212

seized was $1500

and gun and

drug packaging materials

found), cert. denied, 115 S. Ct. 1439 (1995).

____________

drawn by the

affirm

motion.

the

jury were

thus proper and

district court's

denial

of

were

The inferences

reasonable, and

we

Andrade's Rule

29

2. Motion for a New Trial

_________________________

Andrade

sufficient

asks that,

even if

to sustain the jury

we find

the evidence

verdict, we grant

him a new

trial in the interest of justice. See Fed. R. Crim. P. 33.3

___

However,

committed

"the decision

to the

to

grant or

sound discretion

United States v. Soto-Alvarez, 958

_____________
____________

cert. denied,
____________

district

506 U.S. 877 (1992).

deny

of the

a new

trial

is

district court."

F.2d 473, 479 (1st Cir.),

Thus, we will affirm the

court's denial of a new trial unless there has been

"manifest abuse of discretion."

72 F.3d 965,

972 (1st Cir. 1995),

United States v. Tibolt,

_____________
______

cert. denied, 116

____________

S. Ct.

2554 (1996); see also 3 Charles A. Wright, Federal Practice &

________

__________________

Procedure: Criminal
___________________

559

(2d

ed.

1982)(appellate

court

____________________

3.

The

government argues

trial

was

untimely,

and

jurisdiction to consider
just two

that

it.

the

motion for
court

thus

lacks

verdict, defendant's counsel

for leave to file a Rule 33 motion at a later

the district

expressly permits

judge

allowed

the court

filing a motion. Motions

verdict or finding of

that

to extend

motion.
the

added).

Rule

time limit

shall be made "within 7

33
for

days after

guilty or within such further time as

____________________________

the court may fix during the 7-day period." Fed. R.

_________________
33 (emphasis

a new

However, on December 22, 1994,

days after the guilty

filed a motion
date;

that Andrade's

Andrade's

Rule

33 motion

timely, and we reach the merits of this claim.

-1313

Crim. P.
was

thus

"properly

defers" to trial court on motion for a new trial).

The remedy of

warranted

"only

where

a new

trial is rarely

there

would

be

used; it

is

miscarriage

of

justice" or "where the evidence preponderates heavily against

the verdict."

(1st Cir.

United States v. Indelicato, 611 F.2d 376, 386

_____________
__________

1979)(internal quotations omitted).

not present any new

Andrade does

evidence or point to any grave errors by

the

trial judge,

but merely

evidence of intent was thin.

reiterates his claim

that the

As we find that the evidence in

the record fully supported the jury's verdict, neither of the

necessary

conditions

for

Accordingly, the district court

new

trial

is

satisfied.

did not abuse its discretion

when it denied Andrade's Rule 33 motion.

III

Andrade's

without merit.

appeals

Andrade's first

is a disparity between

argues that

which

sentence

are

level for powder

the recent report of

also

claim is that because

erred in not departing

base offense

recommended

his

the punishments for crack and

cocaine, the trial judge

the comparable

from

there

powder

downward to

cocaine.

He

the Sentencing Commission,

modification

of

this

disparity,

demonstrates that there are factors not adequately considered

by the current

district

Guidelines. See
___

court agreed

U.S.S.G

with Andrade

5K2.0,

that the

p.s.

The

disparity was

-1414

"unfair" and

that, in

the right circumstances,

a departure

based on the

Commission findings would be justified.

however, the

district judge

downward,

require

Andrade's extensive

substantial

Accordingly, the

26,

the

found that

criminal

record

compensatory

upward

court set

required

level

were she

to depart

would

the

Guidelines

then

departure.

Andrade's base offense

under

Here,

level at

for

cases

involving between five and twenty grams of cocaine base.

U.S.S.G.

See
___

2D1.1(c)(7).

The district court thus rejected Andrade's request

for a

departure

on a

discretionary,

While in other circumstances,

to

review

judge,

the

not a

legal,

this court lacks

discretionary decisions

United States v. Sanchez,

_____________
_______

of

81 F.3d 9,

basis.

jurisdiction

the

sentencing

10 (1st Cir.),

petition for cert. filed (U.S. July 8, 1996)(No. 96-5082), we

________________________

would reject Andrade's

appeal here regardless.

As we

have

held, the Sentencing Commission's findings with regard to the

sentence disparity between crack

ground for departure under

United
States
_______________

v.

Camilo,
______

and powder cocaine are "not

5K2.0."

71

F.3d

Id. at 11; see also

___
___ ____

984,

990

(1st

Cir.

1995)(noting congressional rejection of Guidelines amendments

that would

have eliminated disparity), cert. denied, 116 S.

_____________

Ct. 1555 (1996).4

The district court thus had no discretion

____________________

4.

Andrade

emphasizes

that

Congress, when

rejecting

proposed equalization of crack and powder cocaine

invited

the

Sentencing

Commission

-15-

to

come

the

penalties,
up

with

an

15

to

depart

downward

based

between crack and powder

the

distinction

Singleterry, 29
___________

to be

on

the

cocaine.

sentencing

This court has

constitutional.

F.3d 733,

distinction

also held

United States
_____________

739-41 (1st Cir.),

v.

cert. denied,
_____ ______

115 S. Ct. 647 (1994).

Andrade also attacks

the district court's decision

to

increase his sentence by

assault

on

police

Andrade contends

that

officer.

See
___

the presentence

Andrade "retrieved a gun,

conceal . .

three levels for his aggravated

unreliable and

Andrade argues that

3A1.2(b).

report finding

which he had earlier

. and discharged it in the

Freeman" was

U.S.S.G.

attempted to

direction of Officer

unsupported by trial

the district judge

that

evidence.

erred in relying

on

that report and on unreliable trial evidence.

In

court's

to

sentencing appeal,

findings of fact for

the district

3742(e).

assaulted

court's

we

Freeman

the district

clear error, giving due regard

credibility judgments.

Here, the district judge's

Officer

review

was

18

U.S.C.

finding that Andrade

clearly based

on

her

own

assessment

of the evidence presented at trial.

Her findings

on this point were explicit:

____________________

alternative
direction to
said

proposal.

study a matter,

to change the

that the

However,

as has

been observed,

even from Congress,

state of the

law (here,

Commission has considered the

cannot be

the legal fact

'circumstance'-- the

difference between crack and powder cocaine)."

v. Anderson, 82 F.3d 436, 440 (D.C. Cir. 1996).
________

-1616

"a

United States
_____________

I saw the testimony, I saw the witnesses.

I

heard what

listened

to

Officer Freeman

said.

him

years

of

with

experience behind me.

Andrade

findings

points to nothing

clearly

25

And I believe him.

in the record

erroneous.

As the

that renders these

evidence,

including

Wright's exclamation that "that dude shot at a cop," supports

finding of aggravated assault on an officer, we affirm the

three-level enhancement.

Andrade's conviction and sentence are affirmed.

-1717