United States v. Lynch, 86 F.3d 1147, 1st Cir. (1996)
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Scribd Government DocsUnited States v. Lynch, 86 F.3d 1147, 1st Cir. (1996)
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Scribd Government Docs86 F.
3d 1147
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished
opinions may be cited only in related cases.
UNITED STATES of America, Appellee,
v.
Jennierose LYNCH, Defendant, Appellant.
No. 95-1486.
United States Court of Appeals, First Circuit.
June 13, 1996.
Appeal from the United States District Court for the District of
Massachusetts, Hon. William G. Young, U.S. District Judge.
Jeffrey M. Smith and Peters, Smith & Moscardelli, by appointment of the
court, on brief for appellant.
Donald K. Stern, United States Attorney, and Frank A. Libby, Jr.,
Assistant United States Attorney, on brief for the United States.
D. MASS.
AFFIRMED.
Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and
BOUDIN, Circuit Judge.
PER CURIAM.
In this sentencing appeal, defendant-appellant Jennierose Lynch, represented by
able counsel, assigns error in regard to two district court determinations that
materially affected the length of her sentence. Discerning no hint of error, we
summarily affirm.
1. The appellant's first complaint relates to the district court's drug quantity
determination. The court determined that the appellant personally participated
in transactions involving between two and one-half and four kilograms of
cocaine; that the conspiracy of which she was a member, during the period of
her membership, launched transactions involving another five to fifteen
kilograms at a minimum; that many (if not all) of these transactions occurred in
the course of jointly undertaken criminal activity (the charged conspiracy) and
were foreseeable to her; and that, therefore, she was responsible (in the relevant
conduct sense, see U.S.S.G. 1B1.3) for over five kilograms of cocaine in toto,
bringing to bear a mandatory minimum ten-year sentence. See 21 U.S.C.
841(b)(1)(A)(ii) (providing for mandatory minimum sentence of ten years in
cases involving five kilograms or more of cocaine).
3
We review the district court's findings of fact anent drug quantity only for clear
error, and we will set such findings aside only if we are persuaded that the
sentencing court has made a "serious mistake." United States v. Morillo, 8 F.3d
864, 870 (1st Cir.1993). We are not so persuaded here; to the contrary, we
believe that the sentencing court's findings are both sufficiently explicit and
sufficiently record-rooted.
Drug quantities need not be determined in a mathematically precise fashion.
Within the margins of reliability, sentencing courts have the authority to make
reasonable estimates based on available information. See, e.g., United States v.
Sepulveda, 15 F.3d 1161, 1199 (1st Cir.1993), cert. denied, 114 S.Ct. 2714
(1994); United States v. Sklar, 920 F.2d 107, 113 (1st Cir.1990). It is,
moreover, settled that members of a drug-trafficking conspiracy may be held
accountable at sentencing for different drug quantities depending on the
circumstances of their involvement. See United States v. Munoz, 36 F.3d 1229,
1237 (1st Cir.1994 ), cert. denied, 115 S.Ct. 1164 (1995); United States v.
Garcia, 954 F.2d 12, 16 (1st Cir.1992). In respect to a defendant's
accountability for drug transactions in which she did not personally participate,
foreseeability is the key. See Garcia, 954 F.2d at 16. "In the usual case, what is
foreseeable depends on the scope of the defendant's agreement with the other
participants in the criminal enterprise." Munoz, 36 F.3d at 1237.
Here, the record reveals that the district court fully understood these principles,
applied the correct legal standard, and made a fact-sensitive determination of
what trafficked drugs were, in the court's words, "reasonably foreseeable or
actually known to [Lynch] ... during the time she was a knowing and willing
participant in th[e] conspiracy." These findings cannot be set aside under the
jurisprudence of clear error. After all, the district court heard over ten weeks of
trial testimony, and also had the benefit of a compendious presentence
investigation report (PSI Report)--a report that was not contradicted by
countervailing evidence in any relevant particulars. The testimony and the
specifics in the PSI Report, viewed favorably to the government, fully
substantiate the findings. No more is exigible. See, e.g., United States v.
Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir.1994) (discussing utility at
sentencing of facts contained in PSI Report); United States v. Ruiz, 905 F.2d
499, 508 (1st Cir.1990) (discussing utility of trial testimony in the sentencing
phase); see also United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st
Cir.1990) (explaining that, when there are two or more plausible views of the
evidence, the sentencing court's choice among them cannot be clearly
erroneous).1
6
2. The appellant's second issue involves the so-called "safety valve" provision,
18 U.S.C. 3553(f), which in certain cases constrains the application of
mandatory minimum sentences. Pursuant to this provision, the sentencing court
is directed to impose a sentence in accordance with the guidelines (without
regard to any statutory minimum) if a convicted defendant satisfies five set
criteria. See id.; see also U.S.S.G. 5C1.2 (Nov.1995) (implementing the
statute). The court below held that Lynch failed to meet the fifth of these
criteria in that she did not provide complete and truthful information "to the
Government" in the appropriate time frame. 18 U.S.C. 3553(f)(5). Lynch
argues that she satisfied this requirement by providing the information to the
probation officer in the course of the compilation of the PSI Report. The district
court disagreed with Lynch's argument. So do we.
We need not tarry. While this case was pending on appeal, a panel of this court
decided the precise point, contrary to the appellant's position, in United States
v. Jimenez Martinez, No. 95-1511, slip op. at 19 (1st Cir. Apr. 24, 1996)
(concluding that "government" as used in 18 U.S.C. 3553(f)(5) and U.S.S.G.
5C1.2(5) refers exclusively to the prosecutorial authority, and not to the
probation department); see also United States v. Montanez, No. 95-2096, slip
op. at 6-7 (1st Cir. Apr. 24, 1996). Jimenez Martinez is binding here, and
blocks the appellant's desired access to the safety valve.
We need go no further.2 Because the appellant's points are unpersuasive, we
summarily affirm her conviction and sentence.
Lynch's contention that the district court failed to make specific subsidiary
findings of fact related to the drug quantity issues is unavailing. The sentencing
court's findings need not be precise to the point of pedantry. Here they are
sufficiently explicit and comprehensive to withstand criticism
Given the view that we take of the merits, we need not reach--and express no
opinion upon--the government's contention that the appellant, in executing the
plea agreement, waived her right to prosecute this appeal
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