United States v. Altagracia Castillo , 145 F. App'x 683 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1317
UNITED STATES,
Appellee,
v.
JOSE ALTAGRACIA CASTILLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Saul Roman Santiago on brief for appellant.
H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee
August 4, 2005
Per Curiam. Jose Altagracia Castillo appeals from his sentence
imposed following his guilty plea to one count of conspiracy to
possess with intent to distribute more than five kilograms of
cocaine, in violation of 21 U.S.C. § 846.1 The district court
enhanced his sentence pursuant to U.S.S.G. § 3B1.1(c), based upon
a finding that his role in the offense was that of an "organizer."
On appeal, Castillo argues for the first time that the facts on the
record do not support that enhancement. We agree and remand for
resentencing.
The only facts contained in the district court record
concerning Castillo's role in the offense are those contained in
the "Stipulation of Facts" incorporated in the plea agreement:
1. Beginning not later than September 1999, JOSE
CASTILLO entered into an agreement with CRISTOBAL
GARCIA, and numerous others, to acquire and
distribute cocaine.
2. In furtherance of the conspiracy, JOSE CASTILLO
helped arrange for transportation and distribution
of multiple kilograms of cocaine in the
northeastern United States.
Based on those facts, the presentence report calculated that "a
two-level enhancement is warranted for being an organizer pursuant
to U.S.S.G. § 3B1.1(c)." The district court followed that
reasoning verbatim in applying a two-level enhancement, resulting
1
Castillo was sentenced in January 2003, before the U.S.
Supreme Court issued its decisions in Blakely v. Washington, 124 S.
Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005).
He does not assert a claim under either Blakely or Booker.
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in a total offense level of 37 which, together with a Criminal
History Category of I, yielded a guideline sentencing range of 210
to 262 months' imprisonment.2 The court imposed a prison sentence
of 210 months, explaining that "[a]fter considering the defendant's
personal history and prior criminal record, a sentence at the lower
end of the guideline range will be imposed."
Castillo concedes that he did not object in district court to
the two-level enhancement and that plain error review applies.
Therefore, appellant has the burden of demonstrating that there was
"an 'error' that is 'plain' and that 'affect[s] substantial
rights.'" United States v. Olano, 507 U.S. 725, 732 (1993). "If
those three factors are all met, the court of appeals then has
discretion to correct the error only if it 'seriously affects the
fairness, integrity or public reputation of judicial proceedings.'
Id. at 736." United States v. Antonakopoulos, 399 F.3d 68, 77 (1st
Cir. 2005).
The district court imposed a two-level enhancement pursuant to
U.S.S.G. § 3B1.1(c) which mandates such enhancement "[i]f the
defendant was an organizer, leader, manager, or supervisor in any
criminal activity other than described in (a) or (b)[providing for
greater enhancements if five or more participants were involved in
2
As the government confirmed at the sentencing hearing, the
plea agreement contemplated that Castillo would receive a two-level
reduction in his base offense level for his minor role in the
offense. See U.S.S.G. § 1B1.2(b).
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criminal activity]." §3B1.1(c). A two-level increase under §
3B1.1(c) is justified only if the government proves that
"(1) the criminal enterprise involved at least two
complicit participants (of whom the defendant may be
counted as one), and (2) the defendant, in committing the
offense, exercised control over, organized, or was
otherwise responsible for superintending the activities
of at least one of those other persons."
Garcia-Morales, 382 F.3d at 19 (quoting United States v. Cruz, 120
F.3d 1, 3 (1st Cir. 1997 (en banc)); see also United States v.
Frankhauser, 80 F.3d 641, 654 (1st Cir. 1996); §3B1.1, comment.
(n.2) ("[t]o qualify for an adjustment under this section, the
defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants" (emphasis added)).
In imposing the two-level enhancement applied in the PSR, the
district court repeated verbatim the PSR's explanation as follows:
Since defendant helped to arrange for transportation and
distribution of multi kilograms of cocaine to the
northeastern part of the United States and had an
agreement with Mr. Cristobal Garcia to acquire and
distribute cocaine, a two level enhancement is applied
for being an organizer under Guideline Section 3B1.1(c).
"In many circumstances, the basis for a role-in-the-offense
enhancement will be apparent from the record. When this is not so,
however, the sentencing court, in order to apply such an
enhancement, must make a specific finding which identifies those
being managed 'with enough particularity to give credence to the
upward adjustment.'" United States v. Medina, 167 F.3d 77, 80 (1st
Cir. 1999). The record in this case does not contain an apparent
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basis for the role-in-offense enhancement. The record establishes
only that Castillo "helped arrange for transportation and
distribution" of large quantities of cocaine. It is not apparent
from that description that Castillo organized the activity of at
least one other participant.
At the time of Castillo's guilty plea, after hearing Castillo
accept the stipulation of facts quoted above, the district court
stated that the plea agreement contemplated that Castillo would
receive a two-level downward adjustment because of his minor role
in the offense. The sentencing judge stated that he would
"determine, after the probation officer reports, whether you will
actually get that minus two level reduction." However, after the
PSR was filed, the district court imposed a two-level enhancement
based upon the same factual information contained in the
stipulation of facts which was incorporated in the plea agreement.
Under these circumstances, it was plain error for the
district court to enhance Castillo's sentence pursuant to §
3B1.1(c) absent any finding, or any basis in the record for
finding, that Castillo had organized the activities of at least one
other participant. Castillo has demonstrated that the error
affects his substantial rights. Absent the two-level enhancement,
the adjusted offense level would have been 35, yielding a guideline
sentencing range of 168-210 months. Given the court's express
inclination to sentence Castillo at the bottom of the applicable
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range, there is a reasonable probability that Castillo might well
have received a sentence of less than 210 months.
Resentencing is appropriate here because there is no factual
support in this sparse record for a finding that Castillo organized
the activities of another participant. See United States v.
Gonzalez-Mercado, 402 F.3d 294, 302 n. 6 (1st Cir. 2005)(applying
plain error review and stating that "[h]ad the district court erred
in making factual findings underlying . . . upward adjustment and,
as a result, misapplied guideline enhancements in a way that
increased the appellant's sentence, such errors would require
resentencing even under our pre-Booker precedents".
Castillo also complains that the district court refused to
allow him in the middle of sentencing to offer an amended plea
agreement even though the government did not object. The district
judge's reaction was understandable and given the delay in making
the motion and the fact that sentencing was underway, we would be
unlikely to regard this refusal as an abuse of discretion, but we
need not decide the matter. Since resentencing will be necessary
in any event, the district court on remand may well be inclined to
allow the parties to propose an amended plea agreement.
Castillo's sentence is vacated and the action is remanded for
resentencing.
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