USCA1 Opinion

July 27, 1995

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-2109

UNITED STATES,

Appellee,

v.

STEPHEN D. CARDELLI,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

Robert M. Napolitano on brief for appellant.

____________________
Jay P. McCloskey, United
_________________
Assistant

United

States Attorney,

States Attorney,

and

Jonathan R. Chapm
__________________

F. Mark Terison,
________________

United States Attorney, on brief for appellee.

Assist

____________________

____________________

Per Curiam.
__________

Defendant Stephen Cardelli appeals the

sentence imposed upon his convictions for federal tax evasion

and conspiring to possess with intent to distribute more than

five kilograms of cocaine.

We affirm.

I.

In

Cardelli

September

with

1992,

two drug

a six-count

offenses

indictment

and four

counts

evasion. Cardelli subsequently entered into

under which he agreed to

of

the

indictment.

conspiring to

of

possess with

federal income

Cardelli

entered

of tax-

a plea agreement

plead guilty to counts one and

These

violation of 21 U.S.C.

charged

respectively

charged him

intent to distribute

six

with

cocaine in

841(a)(1), 841(b)(1)(A), and evasion

taxes in violation

his guilty

plea on

of 26

U.S.C.

April

7, 1993.

sentencing hearing was held on September 26, 1994.

7201.1

His

At

the sentencing hearing,

Cardelli contested the drug

quantity used to calculate his sentence under the United

States Sentencing

could

he

Guidelines (Nov.

1993).

While

Cardelli

not recall the precise amount of cocaine that he sold,

estimated it to

government

be an amount

then called

below 15

DEA Agent

kilograms.2

John Bryfonski,

The

the case

____________________

1.

The government agreed to

the indictment.

Cardelli

dismiss the remaining counts of

also agreed to cooperate

with the

government's investigative efforts.

2.

The

assigned

Drug Quantity

Table of

the Guidelines,

2D1.1(c),

a base offense level of 34 to offenses involving at

least 15 but less than 50 kilograms of cocaine.

agent on the investigation that led to Cardelli's indictment.

Consistent with

the

information in

the presentence

(PSR), Bryfonski testified that between

June,

1989,

cocaine

Lewiston,

Cardelli

distribution

and

Auburn

testified that Dan

and

ring

areas

May, 1988 and May or

four others

that operated

of Maine.3

and Randy Hicks

report

participated

in

in

the Portland,

Agent

and Pizzi each

Bryfonski

provided

consistent information to the government concerning the birth

and subsequent

in

May,

operation of the conspiracy.

1988,

the

five

restaurant in Portland and

conspirators

Thus, sometime

met

at

Giobbi's

agreed that Cardelli would supply

cocaine to Dan and Randy Hicks who, in turn, would distribute

it to Pizzi for retail sales.

Dan

Hicks estimated

that

Cardelli

supplied him

with

approximately 25-30 kilograms of cocaine during the course of

the

conspiracy.

cocaine from

total of

Randy

Hicks,

who

often transported

Portland to Lewiston/Auburn,

20-25 kilograms was involved.

he received

estimated that

the

Pizzi indicated that

approximately 35-40 kilograms during the course

____________________

3. The other individuals involved

of the conspiracy.4 Bryfonski also
Jonathan Singer,
and Randy Hicks, a

who supplied

in the conspiracy were

testified that Cardelli

the cocaine to

father and son team who

Cardelli, Dan

obtained cocaine

from Cardelli,
from the

and Christopher

Pizzi, who

Hickses and distributed

the Lewiston/Auburn area.

obtained cocaine

it to retail

customers in

Although Singer was never charged,

Dan and Randy Hicks and Christopher Pizzi pled guilty to drug
offenses arising from their conspiracy with Cardelli.

4.

When asked how Pizzi

knew that all of this

from Cardelli, Bryfonski related

present

in

Cardelli's

cocaine came

that Pizzi was occasionally

business

office

when

distribution

matters were discussed.

-3-

himself

had

indicated during

his debriefing

sessions with

government agents that he had sold more than 15 kilograms.

Cardelli did not testify at his sentencing hearing.

presented

no

evidence

testimony.

Defense

opportunity

to

that their

counsel

controvert

agent

stated that

cross-examine

sentences

the

in

the coconspirators,

coconspirators had

return

Bryfonski's

he would

statements, particularly that of

unreliable because

reduced

to

for

He

like an

implying

Dan Hicks, were

all

been

implicating

given

Cardelli.5

Relying on agent Bryfonski's testimony and the information in

the

PSR,

the

district

judge

found

that

Cardelli

was

responsible for at least 15 kilograms of cocaine and that his

corresponding base

offense level was

34.6

While

the court

acknowledged

that

agent

Bryfonski's

description

of

the

____________________

5.

We note, however, that defense counsel neither subpoenaed

these witnesses, nor requested a continuance so that he might

secure their presence.
substantially more

Yet it was apparent from the PSR that

than 15 kilograms had

been attributed to

Cardelli.

6.
That

The PSR attributed a total of 29.4 kilograms to Cardelli.

figure

was

based

total

of

on

evidence

that

27

kilograms

to

distributed

Christopher

Pizzi

provided an

additional 2000

and

for distribution to Dan

Cardelli

provided

individual

(Phillip

contrary,"[f]acts
ordinarily
purposes."

an

evidence

that

Gullifer).
contained

396.9

in

-4-

also

had

to

presentence

Morillo, 8 F.3d
_______

Cir. 1993).

for

evidence

reliable evidence

United States v.
_____________

Hicks

indicated that

grams

Absent

had

Phillip DiStefano

The PSR also

additional

are considered

Dan

Cardelli

grams to one

Hicks.

Cardelli

another
to

the

report

for sentencing
864, 872 (1st

conconspirators'

drug

quantity estimates

was

hearsay, the

court found that this evidence was reliable because all three

coconspirators had

been

indicated that at least

15 kilograms had

distributed during the course of the conspiracy.7

Thus, starting

base offense level of

34, the court added 2 points

Cardelli's leadership

role in the conspiracy

with a

based on

and deducted 3

points based on his acceptance of responsibility to arrive at

total offense

category II,

sentencing

the

level

of 33.

the court determined

The court then allowed

downward departure

substantial cooperation (see U.S.S.G.

___

accepted the

government's

court sentenced

years

for a

history

that Cardelli's guideline

range was 151-188 months.

government's motion

Cardelli's

Applying criminal

based on

5K1.1) and

sentencing recommendation.

The

108 months' imprisonment

and 5

Cardelli to

of supervised release on the conspiracy count and to a

concurrent 60 months' imprisonment

release

on the

tax evasion

and 3 years of supervised

charge.

Cardelli

appeals this

sentence.

II.

Cardelli

maintains

that

the

district

court

made

serious mistake by

basing its drug

quantity finding on

the

____________________

7.

The court specifically noted that it did not need to find

the precise number of kilograms that Cardelli had

the

court's finding

triggered

the base

crimes involving 15 to 50 kilograms.

-5-

sold since

offense level

See n. 2, supra.
___
_____

for

hearsay

statements

agent Bryfonski's

descriptions are

of his

coconspirators

testimony.

Cardelli

nothing more than

as

described in

implies that

these

"drug filtered memories"

that are all the more unreliable because they were not tested

by cross-examination.

court

committed

evidence without

clear

Cardelli

error

contends that the

by

crediting

district

this

requiring the coconspirators to

hearsay

testify in

court.

We review the district court's findings on drug quantity

only for clear error.

28 F.3d 1296,

(1994);

(1st Cir.

See, e.g., United States

___ ____ _____________

v. Whiting,
_______

1304 (1st Cir.), cert. denied, 115

_____ ______

United States v. Zuleta-Alvarez, 922

______________
______________

S. Ct. 328

F.2d 33, 36-7

1990), cert. denied, 500 U.S. 927 (1991).

_____ ______

We find

no

error here.

hearsay

can

Connolly,
________

It

be

51

used

F.3d

codefendants'

is well

at

1,

established that,

sentencing."

(1st

drug quantity

United States
______________

Cir.

estimates

"[r]eliable
[r]eliable

1995)(holding

reported in

v.

that

PSR and

investigating officer's testimony were reliable hearsay where

estimates

were

Connolly,
________

the

more

than

15

consistency

"generally

consistent").

three coconspirators

kilograms

was

of

sufficient

cocaine

Here,

as

in

consistently attributed

to

Cardelli.

corroboration

that

This

the

coconspirators' estimates were reliable enough to support the

court's

conservative finding

for

least

at

15

kilograms.

that Cardelli

But

for

was responsible

his

own

unsworn

-6-

statements, Cardelli presented

The

district court

contrary

estimate,

Cardelli presented

no evidence to the

was

not required

see
___

Connolly, id.,
________ ___

to credit

contrary.

Cardelli's

particularly

no evidence and conceded that

recall the precise amount that he had sold.

where

he did not

We also do not

acceptance of

Bryfonski

find any error in the

district court's

the drug quantity estimates

absent

direct

coconspirators.

Although

these

had

witnesses

defense counsel

testimony

the PSR

knowledge

of

did not ask for

reported by agent

from

clearly

the

Cardelli's

indicated

amounts

involved,

cross-examination until the

day of Cardelli's sentencing hearing.

This was far too late.

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

___ _____________
______________

district

court did

examination made

the

not err

record thoroughly

court's

quantity

in denying

at sentencing

and are

hearing).

request for

We

satisfied that

determination

preponderance of the evidence.

that

is

(holding

cross-

have reviewed

the district

supported

by

See United States v. Morillo,

___ _____________
_______

8 F.3d at

871.

Accordingly, the judgment

court is affirmed.
________

-7-

of the

district