United States of America, Appellee, v. Eric Agramonte, Defendant-appellant, 980 F.2d 847 (2d Cir. 1992)

In computing Agramonte's sentence, the district court attributed to Agramonte the fifty pounds of marijuana that was the subject of negotiation in the transaction involving Splain, Soucy, Jock and Lubrant, the twenty-five pounds Agramonte requested that Lubrant "front" him and two ounces of cocaine that Agramonte separately negotiated to sell to Lubrant.

On appeal, Agramonte contends that the district court erred in calculating the base offense level by including the twenty-five pounds of marijuana he sought but never received; challenges, on the basis of his minor role in the conspiracy, the denial of a reduction in his offense level, contending that his minor role in the conspiracy entitled him to a reduction; and asserts that the district court erred in dismissing Juror No. 11 without an inquiry.

DISCUSSION

Sentencing Guideline section 1B1.3 instructs the sentencing court to consider, in calculating the base offense level and making adjustments, various categories of "relevant conduct," including "all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction," U.S.S.G. § 1B1.3(a) (1), as well as "acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Id. § 1B1.3(a) (2).¹  See United States v. Perdomo, 927 F.2d 111, 114 (2d Cir. 1991); United States v. Vazzano, 906 F.2d 879, 882 (2d Cir. 1990). In the case of a drug transaction, the goal is to base a defendant's punishment on quantities of narcotics that, although not actually delivered, were "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a) (2), application note 2; see Perdomo, 927 F.2d at 114-15.

In United States v. Santiago, 906 F.2d 867 (2d Cir. 1990), we reasoned that the "same course of conduct" concept focuses on whether the defendant has engaged in an identifiable "behavior pattern," id. at 872, of specific criminal activity. Based upon the facts before us, it was not clearly erroneous for the district court to view Agramonte's activities as a pattern of criminal behavior. Agramonte first requested that Lubrant "front" him the marijuana on August 9, 1990. Agramonte subsequently contacted Lubrant on September 18, 1990, stating that he had a buyer who wished to purchase a large quantity of marijuana. One week later, on September 25, Agramonte arranged a meeting between Lubrant and Splain, and again requested that Lubrant "front" him the drugs. Thus, the district court properly concluded that Agramonte had engaged in the "same course of conduct" for section 1B1.3(a) (2) inclusion purposes.

In a case not involving "fronted" drugs, we held that a district court may include as relevant conduct transactions involving quantities of narcotics that were not negotiated as part of the transaction for which the defendant was convicted. See United States v. Burnett, 968 F.2d 278, 280 (2d Cir. 1992) (separate purchase of cocaine considered "relevant conduct" in determining base offense level in sentencing for possession of marijuana with intent to distribute); see also Vazzano, 906 F.2d at 882 (separate sale of cocaine considered "relevant conduct" for purposes of determining base offense level). That Agramonte wished to purchase the drugs on consignment does not change the fact that his requests were part of the same course of conduct as the conduct involving the conspiracy for which he was convicted. Therefore, the district court properly included the twenty-five pounds of marijuana in determining Agramonte's base offense level.

Agramonte argues that he was unable to purchase the narcotics and that Lubrant had no intention of "fronting" them. We need not reach the question of whether Lubrant intended to "front" Agramonte the drugs. The facts of this case are sufficient to establish that Agramonte had the intent and the ability to distribute the drugs. Agramonte requested that Lubrant "front" him the drugs on two separate occasions. Given Agramonte's extensive knowledge of drug dealers and the drug trade, it is evident that if he had received the requested drugs, he would have been able to sell them and repay Lubrant. Indeed, Agramonte assured Lubrant that he would repay him within a few days. Moreover, because Lubrant showed Agramonte and Splain the one hundred pounds of marijuana, Agramonte had reason to believe that Lubrant had the ability to produce the drugs. Accordingly, we find that Agramonte's requests to "front" the drugs properly were considered "relevant conduct" under the provisions of the Guidelines, see U.S.S.G. § 1B1.3.

Agramonte also contends that he was entitled to a two-level reduction in his adjusted offense level based upon his minor role in the conspiracy. Agramonte, however, never challenged the finding in the presentence report that he was not entitled to an offense reduction. He did not raise the issue at the sentencing hearing, and in fact stated to the district court that his only objection to the presentence report was its inclusion of the twenty-five pounds of marijuana as an amount under negotiation. By failing to raise this issue, Agramonte waived any right to have it resolved by the district court. United States v. Caba, 955 F.2d 182, 187 (2d Cir. 1992), cert. denied, --- U.S. ----, 113 S. Ct. 130, 121 L. Ed. 2d 84 (1992).

Agramonte also asserts that the district court committed reversible error by failing to hold an inquiry before dismissing Juror No. 11. Under Fed. R. Crim. P. 24(c), district courts have broad discretion to replace jurors at any time before the jury retires for deliberations. Such a decision will be upheld unless the defendant shows bias or prejudice. United States v. Gambino, 951 F.2d 498, 502-03 (2d Cir. 1991), cert. denied, --- U.S. ----, 112 S. Ct. 1962, 118 L. Ed. 2d 563 (1992). Agramonte makes no assertions that he suffered bias or prejudice, and does not claim that the alternate juror who completed the trial was not impartial. We therefore reject this argument.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court in all respects.