United States v. Valencia Lucena ( 1993 )


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    UNITED STATES COURT OF APPEALS
    For The First Circuit
    ____________________

    No. 92-1200

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    CARLOS VALENCIA-LUCENA,

    Defendant, Appellant.

    ____________________

    No. 92-1201

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    JOSE MANUEL BASTIAN-CORTIJO, a/k/a CHEO,

    Defendant, Appellant.

    ____________________

    No. 92-1202

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    ROBERTO LABOY-DELGADO,

    Defendant, Appellant.

    ____________________



















    No. 92-1203

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    EDWIN CARPIO-VELEZ,

    Defendant, Appellant.

    ____________________

    ERRATA SHEET

    The opinion of this Court issued on March 2, 1993, is
    ammended as follows:


    Page 16, footnote 6, line 5, should read: ". . . fare better
    . . ." instead of " . . . fair better . . ."































    -2-














    March 2, 1993 UNITED STATES COURT OF APPEALS
    For The First Circuit
    ____________________

    No. 92-1200

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    CARLOS VALENCIA-LUCENA,

    Defendant, Appellant.

    ____________________

    No. 92-1201

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    JOSE MANUEL BASTIAN-CORTIJO, a/k/a CHEO,

    Defendant, Appellant.

    ____________________

    No. 92-1202

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    ROBERTO LABOY-DELGADO,

    Defendant, Appellant.

    ____________________








    -1-














    No. 92-1203

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    EDWIN CARPIO-VELEZ,

    Defendant, Appellant.

    ____________________

    APPEALS FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

    [Hon. Jaime Pieras, Jr., U.S. District Judge]
    ___________________

    ____________________

    Before

    Torruella and Stahl, Circuit Judges,
    ______________

    and Skinner,* District Judge.
    ______________

    _____________________

    Carlos L pez-de Azua, with whom Lou Ann Delgado, was on
    ______________________ ________________
    brief for appellant Valencia-Lucena.
    Julia M. Garriga, by Appointment of the Court, for appellant
    ________________
    Basti n-Cortijo.
    Lydia Lizarr bar-Masini for appellant Laboy-Delgado.
    _______________________
    Thomas M. Dawson for appellant Carpio-V lez.
    ________________
    Jorge E. Vega-Pacheco, Assistant United States Attorney,
    _______________________
    with whom Daniel F. L pez-Romo, United States Attorney, and Jos
    ____________________ ____
    A. Quiles-Espinosa, Senior Litigation Counsel, were on brief for
    __________________
    appellee.



    ____________________

    March 2, 1993
    ____________________





    ____________________

    * Of the District of Massachusetts, sitting by designation.














    TORRUELLA, Circuit Judge. In a previous appeal we
    _____________

    affirmed the convictions of Carlos Valencia-Lucena, Edwin Carpio-

    V lez, and Jos Basti n-Cortijo under 21 U.S.C. 846 for

    conspiring to possess with intent to distribute 137.2 kilograms

    of cocaine and under 21 U.S.C. 963 for conspiring to import

    into the United States 137.2 kilograms of cocaine and we affirmed

    the conviction of Roberto Laboy-Delgado on the latter offense.

    However, we vacated the sentences and remanded for resentencing

    because the district court failed to determine the amount of

    cocaine involved for the purpose of sentencing. In so doing, we

    directed the district court to conduct an evidentiary hearing on

    that issue. United States v. Valencia-Lucena, 925 F.2d 506 (1st
    _____________ _______________

    Cir. 1991).

    On remand, the parties stipulated that the evidence

    would be the same as heard at trial. The district court

    determined that the amount of cocaine for the purpose of setting

    the base offense level was 137.2 kilograms of cocaine and

    resentenced the defendants. This appeal followed.

    Appellants claim that the new factual finding

    constitutes clear error. They argue that the district court is

    bound by its prior determination that the evidence was

    insufficient and unreliable to sentence on the basis of 137.2

    kilograms since the government offered no new evidence as to

    amount. Appellants Basti n-Cortijo, Laboy-Delgado, Carpio-V lez

    argue that the district court failed to give specific reasons for

    its finding that the amount of cocaine was foreseeable, and


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    further that the evidence was insufficient to support such a

    finding. Finally, appellants maintain that the district court

    improperly denied appellant Valencia-Lucena's document request at

    the resentencing hearing, given the court's new determination on

    the amount involved. We affirm the district court's findings

    with respect to the amount of cocaine used to determine the base

    offense level as well as its denial of further document

    discovery, but remand for specific findings on foreseeability.

    I. FACTUAL BACKGROUND
    I. FACTUAL BACKGROUND

    As this appeal concerns the district court's findings

    upon resentencing, we provide only a summary of the facts; our

    earlier opinion recounts the history more fully. See Valencia-
    ___ _________

    Lucena, 925 F.2d 506. The four appellants participated with
    ______

    others not part of this appeal in a scheme to fly cocaine via

    private aircraft from Colombia, South America to the United

    States through the Virgin Islands. Valencia-Lucena piloted the

    aircraft from Puerto Rico to Colombia, returning with the cocaine

    to the drop point in the Virgin Islands. Basti n-Cortijo was the

    "kicker"; he acted as the bombardier, allegedly dropping ten (10)

    igloo coolers containing twenty (20) kilograms of cocaine to

    retrieval boats waiting below. Carpio-V lez appeared at various

    times during the conspiracy; he apparently repaired some wiring

    on one of the retrieval boats and was alleged to have owned the

    cocaine at one point. Laboy-Delgado repaired mechanical problems

    with the boats. The government foiled the plot with the

    assistance of a coconspirator turned confidential informant.


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    Initially the government indicted appellants based on

    the coconspirator, confidential informant's estimate that the

    object of the conspiracy was the importation of 200 kilograms of

    cocaine. A first superseding indictment reduced the amount to

    173.2 kilograms. A second superseding indictment further reduced

    the amount to 137.2 kilograms, the amount of cocaine recovered by

    the government some days after the arrests. At trial, the

    district court refused to admit into evidence the amount of

    cocaine involved in the conspiracy because it viewed the links

    between the seized cocaine and the defendants as weak, and

    believed admission of the evidence would unfairly prejudice the

    defendants. The district court understood that determining the

    actual amount was not necessary to convict on the conspiracy

    charges.

    The district court sentenced codefendant Jos Llad -

    Ortiz first.1 The district judge subsequently clarified the

    findings made at that hearing in its opinion and order of

    December 28, 1989. The district court then applied these

    findings to appellants.

    It was unclear to us how the district court arrived at

    his initial sentences. When challenged by the government, the

    district court adopted the government's position that 137.2

    kilograms were to be used for calculation of the base offense

    level, but then proceeded to depart downward based "on the

    government's failure to adequately prove that the 137.2 kilograms

    ____________________

    1 Llad -Ortiz is not part of this appeal.

    -5-














    of cocaine, found in coolers the government seized, was the

    cocaine the defendants conspired to import." United States v.
    ______________

    Jos Llad -Ortiz, Crim. No. 89-002, slip op. at 5 (D.P.R. Dec.
    _________________

    28, 1989). The district court further supported the downward

    departure by stating that the government's case agent falsely

    testified before the grand jury. This latter reason was in the

    manner of punishment. The court concluded that "[u]pon reviewing

    the evidence at trial, we do not find it sufficient to sentence

    the defendants according to a quantity based on the 137.2

    figure." Id.
    ___

    Under the applicable United States Sentencing

    Guidelines at the time of sentencing, the base offense level for

    137.2 kilograms of cocaine was 36. United States Sentencing

    Guidelines, Guidelines Manual, 2D1.4 & 2D1.1(a)(3) (Nov. 1
    _________________

    1989) (Drug Quantity Table). The district court increased the

    total offense level of Valencia-Lucena to 38 for his use of a

    special skill in piloting the aircraft, U.S.S.G. 3B1.3, and

    reduced the offense levels of Carpio-V lez, Basti n-Cortijo and

    Laboy-Delgado to 34 for their minor roles in the conspiracy,

    U.S.S.G. 3B1.2(b). As a result of the downward departure, the

    district court sentenced all appellants to 120 months

    imprisonment.

    In the previous appeal we rejected the district court's

    departure based on its "perceived need to reprimand the

    government," holding that departure is not warranted by the

    conduct of third parties. More important to this appeal, we


    -6-














    remanded for resentencing because the district court purported to

    accept the government's contention that 137.2 kilograms were

    involved for purposes of determining the base offense level, but

    then departed downward because it deemed the evidence an

    insufficient basis upon which to sentence. We said that the

    district court

    expressly stated that it did not believe
    the government's contention that 137.2
    kilograms was involved, which clearly
    indicates that the court was never
    convinced of the reliability of the
    government's evidence. The amount set by
    the government should not, therefore,
    have been adopted by the court in the
    first instance without having conducted
    an evidentiary hearing in order to reach
    a reliable determination as to the amount
    of cocaine.

    Valencia-Lucena, 925 F.2d at 516.
    _______________

    On remand, the district court held a hearing on

    September 10, 1991 to determine the amount of cocaine involved in

    the conspiracy to be used to set the base offense level. The

    parties stipulated that the evidence was to be the same as that

    given at trial. On October 28, 1991, appellants jointly filed a

    pro se motion requesting the district court to subpoena a number
    ___ __

    of items relating to the amount.2 On October 30, 1991, the

    ____________________

    2 The documents requested included the following: (1) Certified
    logbook from U.S. Coast Guard; (2) certified logbook from British
    Virgin Islands police vessel St. Ursula; (3) certified logbook
    from Tortola Harbor; and (4) certified logbook from Spanish Town
    Harbor from December 31, 1988 to January 10, 1989; (5) a copy of
    DEA Form 473 describing the government's agreements with
    confidential informant Rafael Manuel V zquez, a/k/a Robert Victor
    ("V zquez"); (6) FBI and NCE reports on V zquez; (7) all criminal
    complaints and records on V zquez in Puerto Rico, St. Thomas, and
    the United States; (8) Drug rehabilitation services and centers

    -7-














    district court found that the government had sustained its burden

    of proving that 137.2 kilograms were involved on the basis of the

    testimony of the confidential informant and because evidence not

    admissible at trial may be considered for the purpose of

    sentencing.

    Apparently this finding took appellants by surprise.

    At the January 15, 1992 sentencing hearing, the attorneys for

    appellants argued that the district court was bound by its prior

    determination that the evidence as to amount was insufficient and

    unreliable for the purpose of sentencing. Alternatively, they

    requested that resentencing be postponed and that the renewed

    discovery request be granted to enable appellants to offer more

    evidence rebutting the government's evidence on the amount of

    cocaine.

    The district court denied the motion and resentenced

    the appellants based on a finding that 137.2 kilograms of cocaine

    were involved in the conspiracy. Under the applicable Sentencing

    Guidelines the base offense level was 36. Valencia-Lucena

    received a two level increase for the use of his skill as a

    pilot. The Guidelines provide a term of imprisonment ranging

    from 235 to 293 months for that offense level. He was

    resentenced to 235 months imprisonment. Basti n-Cortijo, Carpio-

    V lez, and Laboy-Delgado had their base offense level reduced to

    34 for their minor roles in the offense. The range of terms of


    ____________________

    attended by V zquez; and (9) any polygraph test taken by V zquez
    and related data.

    -8-














    imprisonment was 151 to 181 months. They were resentenced to 151

    months.

    II. DISCUSSION
    II. DISCUSSION

    A. Base Offense Level
    __________________

    The crux of appellants' argument is that the district

    court was bound by its prior determination that the evidence as

    to the amount was insufficient and unreliable, and therefore, the

    district court should have based the base offense level on the

    minimum amount. We disagree.

    We thought our earlier ruling rather straight-forward

    and clear. We held that the district court never made a factual
    _____ ____

    determination as to the amount involved in the conspiracy.

    Valencia-Lucena, 925 F.2d at 515-16. Consequently, we directed
    _______________

    the district court to hold an evidentiary hearing on that issue.

    The district court followed our mandate. It held a hearing at

    which the parties stipulated that the evidence would be the same

    as at trial. That stipulation was appellants' fatal mistake.

    They assert on appeal that the district court is bound by its

    previous finding on the same evidence. But there simply was no

    finding by which the district court could be bound. We plainly

    said so in the previous appeal: "[t]he district court failed to

    determine the reliability of the evidence as to the quantity of

    cocaine which was used." Id. at 515.
    ___

    When the quantity of drugs used for the base offense

    level is in dispute, the district court must make an independent

    finding at an evidentiary hearing as to the reliability of the


    -9-














    evidence. Valencia-Lucena, 925 F.2d at 515-16; United States v.
    _______________ _____________

    Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990), cert. denied,
    ______________ ____ ______

    111 S. Ct. 2039 (1991); U.S.S.G. 6A1.3(a). In Zuleta-Alvarez,
    ______________

    we acknowledged the importance of the evidentiary hearing on the

    amount of drugs used since quantity is a critical factor in

    determining length of imprisonment. Defendants in a drug

    prosecution cannot be expected to offer evidence on the quantity

    of illicit drugs while simultaneously arguing that they were not

    involved with any drug transaction. Zuleta-Alvarez, 922 F.2d at
    ______________

    36 (citing Chief Judge Breyer, "Federal Sentencing Guidelines and

    the Key Compromises upon which They Rest," 17 Hofstra L. Rev. 1,

    10 (1988)). The evidentiary hearing held exclusively for the

    purpose of sentencing provides this necessary opportunity. We

    remanded specifically for this purpose.

    At the evidentiary hearing the government must prove

    the amount of cocaine involved by the preponderance of the

    evidence. United States v. Cetina-G mez, 951 F.2d 432, 435 (1st
    _____________ ____________

    Cir. 1991); United States v. Rodr guez-Cardona, 924 F.2d 1148,
    _____________ _________________

    1155 (1st Cir.), cert. denied, 112 S. Ct. 54 (1991); United
    ____ ______ ______

    States v. Wright, 873 F.2d 437, 441 (1st Cir. 1989); see also
    ______ ______ _________

    United States v. Sims, 975 F.2d 1225, 1242-43 (6th Cir. 1992).
    ______________ ____

    At sentencing, the district court may consider "relevant

    information without regard to its admissibility under the rules

    of evidence applicable at trial, provided that the information

    has sufficient indicia of reliability to support its probable

    accuracy." U.S.S.G. 6A1.3(a); see United States v. Figaro, 935
    ___ _____________ ______


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    F.2d 4, 8 (1st Cir. 1991). "Under this generous formulation, the

    sentencing court has broad discretion to determine what data is,

    or is not, sufficiently dependable to be used in imposing

    sentence." United States v. Tardiff, 969 F.2d 1283, 1287 (1st
    _____________ _______

    Cir. 1992); United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st
    _____________ ______________

    Cir. 1991). We review the district court's determination of the

    quantity of drugs for which the defendant is responsible, like

    other factual findings in the context of the Sentencing

    Guidelines, for clear error. United States v. Pavao, 948 F.2d
    _____________ _____

    74, 77 (1st Cir. 1991); Wright, 872 F.2d at 444. The district
    ______

    court's finding that 137.2 kilograms were involved for the

    purpose of calculating the base offense level did not constitute

    clear error. The coconspirator turned confidential informant

    testified that appellants conspired to possess 200 kilograms of

    cocaine. Appellants failed to contradict the informant's

    testimony. Indeed, they offered no additional evidence as to

    amount at the evidentiary hearing.

    In addition, the government recovered only 137.2

    kilograms because the coolers of cocaine were dropped in the sea

    for retrieval; some of the coolers were apparently lost. The

    district court could properly consider the 137.2 kilograms

    retrieved for the purposes of sentencing despite the fact that

    the physical evidence of the coolers and cocaine was not admitted

    at trial because it was deemed unfairly prejudicial. This

    evidence, without any alternative evidence as to amount from the

    appellants, was a more than sufficient basis upon which to


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    resentence, as the district court did.

    B. Discovery Request
    _________________

    Appellants' contend that the court should have

    postponed resentencing to allow them further document discovery.

    Appellants hoped to uncover information to challenge the

    government's evidence. They made this new request a month and a

    half after the September 10, 1991 evidentiary hearing mandated by

    this court. Appellants renewed the request after the district

    court found 137.2 kilograms to have been the object of the

    conspiracy. The district court denied the request.

    In effect, appellants request two bites at the apple.

    Like the district court, we are disinclined to oblige. We review

    the district court's denial of further discovery for clear error.

    Pavao, 948 F.2d at 77; Wright, 873 F.2d at 444. The district
    _____ ______

    court enjoys wide discretion in determining relevance at

    sentencing hearings. Iguaran-Palmar, 926 F.2d at 10. First,
    ______________

    appellants had their opportunity to contest the government's

    evidence at the September 10, 1991 hearing; they failed to take

    advantage of it. They cannot resuscitate that right so late in

    the proceedings. See Zuleta-Alvarez, 922 F.2d at 36. Second,
    ___ ______________

    the district court properly could find that the documents

    requested ultimately would not affect its decision that the

    government's evidence on the amount was sufficient and reliable.

    Appellants failed to demonstrate how the documents requested

    would undermine the government's evidence. Both defendants and

    the government presented testimony and cross examined the


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    commanders of the Coast Guard vessel and the British Virgin

    Islands police vessel at trial; we cannot see, and appellants

    have failed to show, how the logbooks would have added anything

    to the testimony already received. The same can be said with

    respect to the documents requested regarding the government's

    confidential informant V zquez; appellants had ample opportunity

    to assail his credibility both at trial and at the evidentiary

    hearing. We cannot say that the district court was clearly

    erroneous in denying appellants' discovery request.




































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    C. Foreseeability of the Quantity
    ______________________________

    The district court applies the law under the guidelines

    applicable on the date of sentencing. 18 U.S.C. 3553(a)(4)

    (1985 & Supp. 1992); Isabel v. United States, 980 F.2d 60, 62
    ______ ______________

    (1st Cir. 1992). On December 28, 1989, the original sentencing

    date, U.S.S.G. 2D1.4(a), 1B1.3,3 (Nov 1, 1989) and their

    Application Notes4 directed the sentencing judge to consider

    conduct and quantities that were in furtherance of the conspiracy

    and reasonably foreseeable to defendants to determine the

    quantity of cocaine for the base offense level. United States v.
    _____________

    Garc a, 954 F.2d 12, 15-16 (1st Cir. 1992); United States v.
    ______ ______________



    ____________________

    3 Section 1B1.3 Relevant Conduct (Factors that Determine the
    ______________________________________________
    Guideline Range) provides in relevant part: "(a) (ii) cross
    ________________
    references in Chapter Two, . . . shall be determined on the basis
    on the following: (1) 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, in preparation for that offense, or in the
    course of attempting to avoid detection or responsibility for
    that offense, or that otherwise were in furtherance of that
    offense . . . ." U.S.S.G. 1B1.3 (Nov. 1, 1989).

    4 The Application Note stated, "[i]n the case of criminal
    activity undertaken in concert with other, whether or not charged
    as a conspiracy, the conduct for which the defendant "would be
    otherwise accountable" also includes conduct of others in
    furtherance of the execution of the jointly undertaken criminal
    activity that was reasonably foreseeable by the defendant."
    _______________________
    U.S.S.G. 1B1.3, comment. (n.1) (Nov. 1, 1989)(emphasis added).
    Section 1B1.3 has been amended and clarified with respect to its
    various provisions on several occasions, most significantly
    effective November 1, 1992. The appendix states that the 1992
    amendments clarify and more fully illustrate the operation of
    this guideline and that material was moved from the commentary to
    the guideline and rephrased for greater clarity. U.S.S.G App. C
    439 (1992).

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    Bianco, 922 F.2d 910, 913 (1st Cir. 1991).5
    ______

    The government relies on United States v. Edwards, 945
    _____________ _______

    F.2d 1387 (7th Cir. 1991), cert. denied, 112 S. Ct. 1590 (1992),
    ____ ______

    for the proposition that in cases in which defendants are charged

    with one isolated set of facts that comprise the entire

    conspiracy, the district court need not make individual findings

    with respect to each defendant. It argues that once an amount is

    determined for a temporally limited, small, and simple

    conspiracy, all defendants associated with the conspiracy should

    be held to foresee that amount. Edwards involved a complex and
    _______

    sophisticated heroin retailing business that had a chain of

    suppliers, mid-level managers, street vendors and wholesalers.

    The Seventh Circuit required specific findings as to each

    defendant since they had joined at different times and may have

    intended to enter a more limited agreement. Id. at 1397. The
    ___

    government contends that the foreseeability inquiry has always

    focused upon whether the disputed conduct fell outside the scope
    _____

    of the conspiracy in factually complicated cases. We do not read

    Edwards to limit the foreseeability inquiry to complex
    _______

    conspiracies. Nor do we find a principle that would sustain such

    ____________________

    5 We garner further support from later clarification and
    expansion of the application notes to U.S.S.G. 1B1.3.
    Application Note 2 currently states that "[w]ith respect to
    offenses involving contraband (including controlled substances),
    the defendant is accountable for all quantities of contraband
    with which he was directly involved and in the case of a jointly
    undertaken criminal activity, all reasonably foreseeable
    quantities of contraband that were within the scope of the
    criminal activity that he jointly undertook." U.S.S.G. 3B1.3,
    comment. (n.2). We may consider this clarifying language at the
    appeal stage. Isabel, 980 F.2d at 62.
    ______

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    a limitation. The criminal conspiracy net is often cast widely.

    Individuals may be involved who know that the agreement they have

    entered is illegal but have no way to foresee the magnitude or

    ambition of the enterprise, as in the case of an individual hired

    to remedy an unexpected complication in the main conspirators'

    plot. The Guidelines require that the government prove by a

    preponderance of the evidence that such individual could

    reasonably foresee the amount contemplated by the conspiracy.

    U.S.S.G. 2D1.4(a), 1B1.3.

    Appellants Carpio-V lez, Basti n-Cortijo, and Laboy-

    Delgado contend that 18 U.S.C. 3553(c) (Supp. 1992)6 requires

    that the district court make a specific finding of foreseeability

    supported by reasoning and facts in the record. They argue that

    the district court's cursory rejection of their objection that

    the government failed to prove foreseeability runs afoul of this

    provision. The government contends that the district court made

    a specific finding on foreseeability, and that it was not

    required to provide specific, fact intensive reasons as the

    record amply showed that appellants knew that in excess of fifty

    ____________________

    6 18 U.S.C. 3553(c) requires that "[t]he court, at the time of
    sentencing, shall state in open court the reasons for its
    imposition of the particular sentence . . . ." Appellants also
    argue that Fed. R. Crim. P. 32(c)(3)(D) imposes that burden as
    well. We think that the appellants fare better under 3553(c)
    as Rule 32(c)(3)(D) only requires that the court make a finding.
    The commentary to the Rule notes that this does not impose an
    onerous burden. "It does not even require the preparation of a
    transcript." Just a finding is required; thus, appellants'
    reliance on Rule 32 is misplaced. See United States v. Webster,
    ___ _____________ _______
    960 F.2d 1301, 1310 (5th Cir.), cert. denied, 113 S. Ct. 355
    ____ ______
    (1992); United States v. McDowell, 918 F.2d 1004, 1013 (1st Cir.
    _____________ ________
    1990) (argument made academic by holding under 3553(c)).

    -16-














    (50) kilograms were involved.7

    We have stated in related contexts that 3553(c)

    requires that when sentencing under the guidelines, a district

    court must make reasonably specific findings to allow for

    meaningful appellate review. United States v. Schultz, 970 F.2d
    _____________ _______

    960, 963 & n.7 (1st Cir. 1992), cert. denied, 61 U.S.L.W. 3479
    ____ ______

    (1993); United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir.
    _____________ ________

    1990). Other circuits similarly require the district court to

    supply sufficient reasoning for its sentencing determinations.

    See, e.g., United States v. Negr n, 967 F.2d 68, 72 (2d Cir.
    ___ ____ ______________ ______

    1992) (vacating and remanding for finding on foreseeable quantity

    when defendant contests); United States v. Puma, 937 F.2d 151,
    _____________ ____

    160 (5th Cir. 1991)("The reasonable foreseeability required of

    2D1.4 requires a finding separate from a finding that the

    defendant was a conspirator."), cert. denied, 112 S. Ct. 1165
    ____ ______

    (1992); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.
    _____________ ______

    1991) ("a district court should explicitly state and support,

    either at the sentencing hearing or (preferably) in a written

    statement of reasons, its findings that the unconvicted

    activities bore the necessary relation to the convicted

    offense"), cert. denied, 113 S. Ct. 174 (1992); United States v.
    ____ ______ _____________

    Guti rrez, 931 F.2d 1482, 1492 (11th Cir.) (requiring specific
    _________

    findings), cert. denied, 112 S. Ct. 321 (1991); see also United
    ____ ______ _________ ______

    States v. Turner, 898 F.2d 705, 709-710 (9th Cir.), cert. denied,
    ______ ______ ____ ______

    ____________________

    7 The guidelines established a base offense level of 36 for in
    excess of 50 kilograms at the date of sentencing, U.S.S.G.
    1D1.4, 1D1.1(a)(3) (Drug Quantity Table).

    -17-














    495 U.S. 962 (1990).8

    In the present case, the district judge said very

    little during the resentencing hearing and his opinion and order

    is not much help either. The district court stated at the

    sentencing hearing after appellants' lengthy argument on the

    foreseeability issue: "Well, independently of that . . . [i]n

    light of common experience, the evidence showed that there

    existed on Carpio[-V lez]'s part foreseeability of the amount of

    cocaine involved in this case." Sentencing Hearing, Valencia-
    _________

    Lucena, Crim. No. 89-002, at 32 (Jan. 15, 1991). The court then
    ______

    relied on this statement with respect to Basti n-Cortijo and

    Laboy-Delgado.

    Despite the paucity of words from the district court,

    the record provides a sufficient basis for the district court's

    finding of foreseeability with respect to Basti n-Cortijo.

    Appellant Basti n-Cortijo was found by the district court to have

    acted as the "kicker," which means that he flew with Valencia-

    Lucena from Colombia, South America transporting 10 igloo coolers

    filled with twenty (20) kilograms of cocaine each, and dropped

    the cocaine from the plane when the pilot reached the designated

    area. We note that Valencia-Lucena did not appeal on this

    ground, indeed it would have been as frivolous as we now find

    Basti n-Cortijo's appeal. As the "kicker," there is simply no

    ____________________

    8 We do not address appellant's argument with respect to which
    party bears the burden on the foreseeability issue as we
    understand the government to believe that it met that burden.
    See Negr n, 967 F.2d at 72-73 (placing burden on defendant to
    ___ ______
    establish lack of foreseeability).

    -18-














    way that he could not have known that he was dropping in excess

    of 50 kilograms to his coconspirators below.

    Appellants' Laboy-Delgado and Carpio-V lez present a

    better case. With respect to them, the district court only found

    that: "The coolers [dropped by Valencia-Lucena and Basti n-

    Cortijo] were to be subsequently retrieved and imported into

    Puerto Rico with the assistance of defendants Carpio-V lez and

    Laboy[-Delgado]." United States v. Valencia-Lucena, No. 89-002,
    _____________ _______________

    slip op. at 3 (D.P.R. Oct. 30, 1991). This statement is an

    insufficient basis for a finding of foreseeability. As we read

    the record, it is not strictly accurate as the evidence suggests

    that Carpio-V lez and Laboy-Delgado were recruited to repair the

    retrieval boats.

    The district court's failure to more fully state the

    evidence upon which it based its finding of foreseeability as to

    the amount of cocaine with respect to Carpio-V lez and Laboy-

    Delgado at the sentencing stage has frustrated this court's

    appellate task. McDowell, 918 F.2d at 1012 & n.12. We make no
    ________

    comment on whether the record supports a finding of

    foreseeability on the preponderance of the evidence; this task is

    for the district court.

    We affirm the resentencing of Nos. 92-1200 and 92-1201.
    ______________________________________________________

    We vacate and remand Nos. 92-1202 and 92-1203 for resentencing.
    ______________________________________________________________








    -19-







Document Info

Docket Number: 92-1200

Filed Date: 3/12/1993

Precedential Status: Precedential

Modified Date: 9/21/2015

Authorities (19)

united-states-v-carlos-valencia-lucena-united-states-of-america-v-jose , 925 F.2d 506 ( 1991 )

United States v. Charles E. Webster and Bobby Nelson , 960 F.2d 1301 ( 1992 )

United States v. Hector Garcia , 954 F.2d 12 ( 1992 )

Maurice Isabel v. United States , 980 F.2d 60 ( 1992 )

united-states-of-america-cross-appellant-91-1476147814791488-v , 975 F.2d 1225 ( 1992 )

United States v. Nicholas Bianco, United States of America ... , 922 F.2d 910 ( 1991 )

United States v. Claude Paul Tardiff , 969 F.2d 1283 ( 1992 )

United States v. Ronald Joseph Puma, A/K/A Ronny Puma, ... , 937 F.2d 151 ( 1991 )

United States v. Luis M. Pavao , 948 F.2d 74 ( 1991 )

United States v. Billy Ray McDowell Jr. , 918 F.2d 1004 ( 1990 )

United States v. Jorge Negron , 967 F.2d 68 ( 1992 )

United States v. Cesar Augusto Cetina-Gomez , 951 F.2d 432 ( 1991 )

United States v. Ricardo Alvarez Gutierrez, Jorge Eliecer ... , 931 F.2d 1482 ( 1991 )

united-states-v-jackie-edwards-leda-martin-olanrewaju-raji-andre , 945 F.2d 1387 ( 1991 )

United States v. Mickey Turner, United States of America v. ... , 898 F.2d 705 ( 1990 )

United States v. John Iguaran-Palmar , 926 F.2d 7 ( 1991 )

United States v. Brian K. Schultz , 970 F.2d 960 ( 1992 )

United States v. Osvaldo Rodriguez-Cardona, A/K/A "Valdo" , 924 F.2d 1148 ( 1991 )

United States v. Bertie Alexander Wright , 873 F.2d 437 ( 1989 )

View All Authorities »