USCA1 Opinion

June 13, 1996

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 95-1486

UNITED STATES OF AMERICA,

Appellee,

v.

JENNIEROSE LYNCH,

Defendant, Appellant.

__________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

__________________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Boudin, Circuit 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.

__________________________

__________________________

Per Curiam.
Per Curiam.
___________

In

this

sentencing appeal,

defendant-

appellant Jennierose Lynch, represented

error

in

regard

to

materially affected the

two

district

by able counsel, assigns

court

length of her

determinations

sentence.

that

Discerning

no

hint of error, we summarily affirm.

1.
1.

district

court's

determined

that

transactions

kilograms

member,

The

appellant's

quantity

determination.

the

appellant

personally

of cocaine;

transactions

relates to

drug

involving

during

first complaint

the

between

two

that the

period

involving another

and

of

her

five to

court

participated

one-half

conspiracy of

The

the

and

which she

membership,

in

four

was a

launched

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

1B1.3) for over five

bear

a mandatory

relevant conduct

sense, see
___

kilograms of cocaine in toto,

__ ____

minimum ten-year

sentence.

U.S.S.G.

bringing to

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).

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

"serious mistake."

(1st Cir. 1993).

we

believe

that

United States v.
_____________

Morillo, 8 F.3d 864, 870

_______

We are not so persuaded here;

the

sentencing

court's

to the contrary,

findings

are

both

sufficiently explicit and sufficiently record-rooted.

Drug

mathematically

reliability,

quantities

precise

sentencing

need

not

fashion.

courts

reasonable estimates based on

United States v. Sepulveda,

_____________
_________

have

be

determined

in

the

margins

of

authority

to

Within

the

available information.

15 F.3d 1161, 1199 (1st

make

See, e.g.,
___ ____

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

drug quantities

sentencing for

different

circumstances of their involvement.

36 F.3d

1164

1992).

1229, 1237 (1st

transactions

respect to

Cir. 1994 ),

in

which

she

foreseeability is the key.

usual

cert. denied, 115

_____ ______

case,

what is

not

personally

for

on

drug

participate,

See Garcia, 954 F.2d at 16.

___ ______

foreseeable depends

S. Ct.

F.2d 12, 16 (1st Cir.

defendant's accountability

did

the

See United States v. Munoz,

___ _____________
_____

(1995); United States v. Garcia, 954

_____________
______

In

depending on

the scope

"In the

of the

defendant's agreement with the other participants in the criminal

enterprise."

Munoz, 36 F.3d at 1237.

_____

Here, the record reveals

understood these

principles, applied the correct legal standard,

and made a fact-sensitive

were, in

determination of what trafficked drugs

the court's words, "reasonably

known to [Lynch]

. .

. during the

willing participant in th[e]

be

that the district court fully

foreseeable or actually

time she

conspiracy."

was a knowing

These findings cannot

set aside under the jurisprudence of clear error.

and

After all,

the district court heard

also had

report

over ten weeks of trial

the benefit of a

(PSI

countervailing

Report)

evidence

compendious presentence investigation

a report

in

testimony and the specifics in

to the government, fully

exigible.

testimony, and

any

that

was not

relevant

contradicted by

particulars.

the PSI Report, viewed

substantiate the findings.

See, e.g., United States

___ ____ _____________

The

favorably

No

more is

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

two

813, 815 (1st Cir.

or

more plausible

1990) (explaining that,

views

of the

evidence,

when there are

the sentencing

court's choice among them cannot be clearly erroneous).1

2.
2.

The appellant's second issue involves the so-called

"safety valve" provision, 18

U.S.C.

cases constrains the application of

Pursuant to this

a sentence

regard

to

in

accordance with

statutory

minimum)

satisfies five set criteria.

(Nov. 1995)

(implementing the

in certain

mandatory minimum sentences.

provision, the sentencing court

impose

any

3553(f), which

if

the guidelines

convicted

See id.; see also

___ ___ ___ ____

statute).

is directed to

(without

defendant

U.S.S.G.

The court below

5C1.2

held

that Lynch failed to meet the fifth of these criteria in that she
____________________

1Lynch's contention

that the district court

failed to make

specific subsidiary findings of fact related to the drug quantity

issues
be

is unavailing.

The sentencing

precise to the point of pedantry.

court's findings need not

Here they are sufficiently

explicit and comprehensive to withstand criticism.

did

not

provide

complete

the

and

appropriate

truthful

Government"

in

3553(f)(5).

Lynch argues that she satisfied this

providing the information

time

information

frame.

18

"to

the

U.S.C.

requirement by

to the probation officer in the course

of

the

compilation

of the

PSI

disagreed with Lynch's argument.

We

need not

tarry.

Report.

The district

court

So do we.

While this

case was

pending on

appeal, a panel of this court decided the precise point, contrary

to

the

appellant's

position,

Martinez, No. 95-1511,

________

slip op. at 19

(concluding that "government"

and U.S.S.G.

in

as used in 18

U.S.C.

to the

Jimenez
_______

24, 1996)

3553(f)(5)

prosecutorial

to the probation department); see also United

___ ____ ______

States v. Montanez, No. 95-2096,

______
________

1996).

v.

(1st Cir. Apr.

5C1.2(5) refers exclusively

authority, and not

24,

United States
______________

Jimenez Martinez
________________

slip op. at 6-7 (1st Cir.

is binding

here, and

appellant's desired access to the safety valve.

Apr.

blocks the

We

points are

need

go

no

further.2

Because

unpersuasive, we summarily affirm

the

appellant's

her conviction and

sentence.

Affirmed.
Affirmed.
________

See 1st Cir. R. 27.1.

See 1st Cir. R. 27.1.
___

____________________

2Given 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.