Appeal from a sentence of imprisonment for 168 months following a conviction in the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, for conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846 (1982), and for conspiracy to distribute cocaine and possession with intent to distribute and distribution of cocaine within 1000 feet of a public elementary school, 21 U.S.C. §§ 841(a)(1), 845a(a) (1982 & Supp. V 1987), and 18 U.S.C. § 2 (1982). Affirmed
Oakes, Chief Judge, Kearse and Altimari, Circuit Judges.
Joseph Candito was convicted by a jury in the United States District Court for the District of Connecticut on January 26, 1989, for conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846 (1982), and for possession with intent to distribute and distribution of cocaine within one thousand feet of a public elementary school, 21 U.S.C. §§ 841(a)(1), 845a(a) (1982 & Supp. V 1987), and 18 U.S.C. § 2 (1982). He was sentenced by Judge Warren W. Eginton to 168 months imprisonment pursuant to the Sentencing Guidelines. See generally United States Sentencing Commission, Guidelines Manual (Oct. 1987) (hereinafter "Guideline" or "Guidelines").
Candito raises two claims on appeal. First, he challenges the district court's calculation of the Guideline range applicable to his conduct. In brief, the district court found that Candito was involved in a cocaine distribution conspiracy during a period in which the conspiracy made or attempted to make four separate cocaine sales, with those transactions either known to Candito or reasonably foreseeable from the conspiracy. The district court thus calculated the Guideline range for Candito's sentence based upon the amounts of cocaine involved in those four transactions. Candito contends that the district court should have taken account of only one of the transactions in sentencing him. Second, Candito argues that the district court violated the Due Process Clause by making its findings regarding Candito's involvement in the conspiracy during the four separate transactions by the preponderance of the evidence standard instead of the beyond reasonable doubt standard.
The charges against Candito stemmed from what the Government alleged was a cocaine distribution conspiracy stretching from October 1987 until September 1988 and involving five players: Candito, Richard Terico, Theodore Farfaglia, John DeFelice, and Thomas Pierro.
The first event in this conspiracy transpired on October 2, 1987, when two undercover agents, Officer William Chase of the Connecticut Statewide Narcotics Task Force and Special Agent Grayling Williams of the Drug Enforcement Administration, arranged to purchase 125 grams of cocaine from Terico. That evening, Farfaglia delivered 113.88 grams to the agents, instead of the 125 grams upon which the agents and Terico had agreed earlier that day.
Several months later, on December 16, 1987, Officer Chase and Special Agent Williams met with Terico, DeFelice, and Candito at the Howard Johnson's Motor Lodge in Stamford, Connecticut. DeFelice told the agents that the October 2, 1987, transaction was not the first instance in which Farfaglia had skimmed cocaine. Consequently, DeFelice stated, Farfaglia no longer would be working for Terico, and, instead, DeFelice and Candito would take his place. The discussion that ensued at the Howard Johnson's indicated that Candito was well aware of Farfaglia's prior dealings and his propensity to shortchange customers.
CANDITO: He [Farfaglia] shorts you maybe like five grams--
CANDITO: Three grams, five, eight.
CHASE: Exactly what--exactly what happened.
CANDITO: Do you know what I'm sayin'? So when he works on the street he picks up five from you, ...