Professional Documents
Culture Documents
No. 15-1812
Appellee,
v.
JAMES DUNSTON,
Defendant, Appellant.
No. 15-1999
Appellee,
v.
SERGIO HERNANDEZ,
Defendant, Appellant.
____________________
No. 15-2000
Appellee,
v.
ANTHONY WOOLDRIDGE,
Defendant, Appellant.
_____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Before
I. BACKGROUND
Wooldridge.
- 3 -
The investigation was launched with a number of
controlled buys: between January and June all dates are in 2012
its environs.
- 4 -
in September. All three were charged with conspiring to possess
see id. 841(a)(1), and Hernandez was charged with being a felon
922(g)(1).
from a DEA agent (Timothy Boyle), who interpreted the slang and
- 5 -
the evidence, the court found "beyond a reasonable doubt that over
II. ANALYSIS
submits that although Boyle may have been qualified to give some
- 6 -
foundation for his interpretations of particular slang terms. To
testify that the word "tweezy" referred to crack cocaine and that
the meaning of these and other specific phrases used within those
v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012). The parties agree
is not novel: "we have long held that government witnesses with
Cir. 2010); accord United States v. Hoffman, 832 F.2d 1299, 1310
- 7 -
used in the drug trade can be supplied through one experienced in
See United States v. Albertelli, 687 F.3d 439, 446 (1st Cir. 2012).
meaning of the terms used, United States v. Prange, 771 F.3d 17,
28 & n.3 (1st Cir. 2014). Put another way, "an interpretation of
to crack.
- 8 -
In this particular probe, Boyle reviewed nearly all of
the 30,000 calls and texts collected during the wiretaps. He not
of specific slang terms but also took into account the context in
from his testimony. See United States v. Henry, ___ F.3d ___, ___
(1st Cir. 2017) [No. 15-2487, slip op. at 21]; Albertelli, 687
F.3d at 447.
conclude that Boyle was knowledgeable about the idiom of the drug
- 9 -
that the admission of Boyle's lay opinion testimony was comfortably
F.3d 1161, 1197 (1st Cir. 1993). He can only be held responsible
conspiracy." Id.
weight issue a trial that was necessary because any fact that
- 10 -
States, 133 S. Ct. 2151, 2155 (2013) (citing Apprendi v. New
Jersey, 530 U.S. 466, 483 n.10, 490 (2000)); United States v.
Pizarro, 772 F.3d 284, 292-93 (1st Cir. 2014). At the end of the
trial, the court found that each of the defendants was responsible
omitted); cf. United States v. Colon-Solis, 354 F.3d 101, 103 (1st
Grace, 367 F.3d 29, 34 (1st Cir. 2004). We must answer this
Wooldridge.
- 11 -
1. Dunston. Dunston contends that the court's finding
was plucked out of thin air. Pointing out that the authorities
two men split the contraband, and Dunston told Hernandez that he
was going to "step up a yard right now and see what it is." This
grams of powder into crack. Later that day, Dunston and Hernandez
spoke again. When Hernandez asked, "how did that come out,"
Dunston replied that the result was "[a]ll yellow" and that he
"[g]ot back, like, 2 extra grams. It was, like, 102 when it dried
all the way out, bone dry." Boyle testified that the yellow tinge
- 12 -
reference to drying the product was also consistent with making
crack.
put their common sense into cold storage. Given the wiretaps and
responsible for at least 200 grams of crack stemming from the June
26 events. For one thing, the court supportably could have found
Dunston responsible for the 100 grams that he himself cooked. For
another thing, the court supportably could have found that the
1For example, the court heard evidence that once Dunston told
Hernandez that he "got back 2 . . . extra grams" after cooking the
powder, Hernandez responded, "You should have done mine." Dunston
replied, "You're the only one that didn't want me to do yours!"
and indicated that Hernandez had mentioned planning to cook his
powder in a particular type of pot. Several hours later, Hernandez
called a third party and asked to use his kitchen.
- 13 -
cocaine. He insists that, even in optimal conditions, 100 grams
bought 200 grams of powder cocaine. Just over two hours later,
was "206 wet," and yellow in color, but quickly turning white.
2
We note, moreover, that the statute of conviction
criminalizes conspiracies involving the possession and intended
distribution of "280 grams or more of a mixture or substance
. . . which contains cocaine base." 21 U.S.C. 841(b)(1)(A)(iii)
(emphasis supplied). Whether the weight of the defendants'
products came from pure crack cocaine or crack combined with water
or some other adulterant is beside the point: the record reflects
that the defendants conspired to possess and distribute a "mixture
or substance" that contained cocaine base. Id.
- 14 -
beyond a reasonable doubt does not require proof to an absolute
certainty. See United States v. Lasseque, 806 F.3d 618, 623 (1st
Williams, 717 F.3d 35, 39-40 (1st Cir. 2013). In this instance,
inferences from the evidence, and its conclusion that Dunston was
cogent evidence that Wooldridge sold his codefendants the 200 grams
of the conspiracy, the district court did not err either in finding
- 15 -
sold by Wooldridge into crack or in holding Wooldridge responsible
1197.
insists that he was not yet part of the charged conspiracy when he
Laracuent, 778 F.3d 347, 351 (1st Cir.), cert. denied, 135 S. Ct.
2875 (2015).
stand.
C. Dunston's Sentence.
- 16 -
3553(a)), because it is greater than necessary to achieve the
See USSG 4B1.1(a). The court below set his guideline sentencing
(1st Cir. 2016). The greater the drop from the bottom of the
United States v. King, 741 F.3d 305, 308 (1st Cir. 2014). In
- 17 -
reflects "a plausible . . . rationale and a defensible result."
took into account the nature of Dunston's crime, his history, and
D. Wooldridge's Sentence.
- 18 -
least 840 grams) is separate from the lesser drug quantity (280
80, 280 n.4 (1st Cir. 2014). All drugs "attributable to[] or
coconspirator, his relevant conduct includes not only his own acts
- 19 -
omissions of other coconspirators in furtherance of the
pedantry." United States v. Platte, 577 F.3d 387, 392 (1st Cir.
2009).
made. See id. "[W]here there is more than one plausible view of
- 20 -
designation as a career offender, see USSG 4B1.1(a), resulted in
S. Ct. 1338, 1346 (2016) ("In most cases a defendant who has shown
of June and, as discussed above, see supra Part IIB, that sale
- 21 -
convert the powder into crack. That evidence, coupled with the
Wooldridge.
Hernandez was the prime mover in arranging for the shipment, both
Wooldridge and Dunston encouraged his efforts. Thus, the 497 grams
- 22 -
drug traffickers have forged a well-defined pattern and practice
for their operations, a sentencing court need not turn a blind eye
meager, and the district court was not obliged to resolve this
States v. Piper, 298 F.3d 47, 53 (1st Cir. 2002) (explaining that,
E. Hernandez's Sentence.
- 23 -
The court found him responsible for at least 2.8 kilograms of crack
7;
When these quantities are combined with the nearly forty-four grams
- 24 -
the probe, Hernandez can properly be held responsible for a minimum
January and June (when the wiretaps were instituted). While this
F.3d 543, 546 (1st Cir. 2011); Platte, 577 F.3d at 392; United
States v. Ventura, 353 F.3d 84, 88 (1st Cir. 2003), and that praxis
- 25 -
court, in fashioning its estimate, has taken a conservative
approach, cf. United States v. Sklar, 920 F.2d 107, 113 (1st Cir.
quantity determination.
States v. Bryant, 571 F.3d 147, 153 (1st Cir. 2009) (citing USSG
- 26 -
the type that engender a presumption of reliability. Id. at 153,
155 (quoting United States v. McKenzie, 539 F.3d 15, 19 (1st Cir.
enough. See id. at 154-55; cf. United States v. Brown, 510 F.3d
more is required").
harmless.
- 27 -
We decline the government's invitation. As a general
672 F.3d 27, 30-31 (1st Cir. 2012); United States v. Kobrosky, 711
F.2d 449, 457 (1st Cir. 1983). Although we have occasionally taken
time on appeal, see, e.g., Farrell, 672 F.3d at 31; United States
offenses, it should, within sixty days from the date hereof, report
its findings and conclusions to this court. If, however, the court
finds to the contrary, it should, within sixty days from the date
- 28 -
hereof, report its findings and conclusions to this court and
III. CONCLUSION
for the time being retain appellate jurisdiction over this appeal.
So ordered.
- 29 -