-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1301
UNITED STATES,
Appellee,
v.
JUAN JOSE MIRANDA-SANTIAGO,
Defendant - Appellant.
____________________
No. 95-1302
UNITED STATES,
Appellee,
v.
CARMEN PACHECO-RIJOS,
a/k/a FINA,
Defendant - Appellant.
____________________
No. 95-1304
UNITED STATES,
Appellee,
v.
ISMAEL RIVERA-DECELIS,
a/k/a MACHO,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge] ___________________
____________________
Before
Selya and Cyr, Circuit Judges, ______________
and Gertner,* District Judge. ______________
_____________________
Edward E. Parson, by Appointment of the Court, on brief for _________________
appellant Juan Jos Miranda-Santiago; Norberto Col n, by ________________
Appointment of the Court, for appellant Carmen Pacheco-Rijos; and
Harry R. Segarra, by Appointment of the Court, for appellant _________________
Ismael Rivera-DeCelis.
Miguel A. Pereira, Assistant United States Attorney, with __________________
whom Guillermo Gil, United States Attorney, and Jos A. Quiles- _____________ ________________
Espinosa, Senior Litigation Counsel, were on brief for appellee. ________
____________________
September 19, 1996
____________________
____________________
* Of the District Court of Massachusetts, sitting by
designation.
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GERTNER, District Judge. In this consolidated appeal, GERTNER, District Judge. ______________
we consider challenges to the sentences of Ismael Rivera-DeCelis,
Carmen Pacheco-Rijos and Juan Jos Miranda-Santiago. In
September of 1994, these defendant-appellants, along with twenty-
one co-defendants, pled guilty to participation in a drug
distribution conspiracy spanning over a year and involving
trafficking in crack cocaine, cocaine, heroin, and marijuana, as
well as using or brandishing firearms, and engaging in carjacking
to facilitate their drug trade.
The defendants were arraigned in two groups, pled
guilty before the same judge and were sentenced before him by
early 1995.
Ismael Rivera-DeCelis contends that his guilty plea was
entered in violation of Rule 11 of the Federal Rules of Criminal
Procedure, and that the district judge erred in calculating his
sentence. See U.S.S.G. 1B1.3. He did not press the first point ___
below. We find that the plea colloquy in his case conformed with
Fed. R. Crim. P. 11 and that the sentence calculations with
respect to him were not in error. Accordingly, we affirm his
conviction and sentence.
Carmen Pacheco-Rijos challenges her sentence, arguing
that the district court erred in imposing the mandatory minimum
required for her offense. Her attack is based on her claim that
she met the conditions set forth in the "safety valve provision"
of the Sentencing Guidelines. See 18 U.S.C. 3553(f); U.S.S.G. ___
5C1.2. We find the record inadequate to justify the district
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court's decision not to grant relief. Accordingly, we vacate the
sentence and remand the case for the purpose of allowing the
district court to revisit this issue and to clarify the record by
filing supplemental findings. In the event that the court finds
its initial calculation in error, it should so identify and
return, as well, to the issue of other adjustments, if
appropriate, under the Guidelines.
Juan Jos Miranda-Santiago also attacks his sentence,
arguing that the sentencing court erred, as a matter of law, by
failing to grant a two-level downward adjustment based on a
finding that the defendant was a "minor participant" in the
criminal activity. See U.S.S.G. 3B1.2(b). We find inadequate ___
support in the record for the court's conclusion that a downward
adjustment was inappropriate. We vacate this sentence and remand
the case to the district court for the purpose of having the
court file supplemental findings with respect to appellant
Miranda-Santiago's role in the offense. In the event that the
court finds its computation in error, it should include such a
determination in its findings.
I. BACKGROUND I. BACKGROUND __________
We begin with an overview of events involving the three
appellants.1
____________________
1 We consider the facts as set forth in the uncontested portions
of the Presentence Report ("PSR") of each defendant, the
information to which each defendant pled guilty, and the
sentencing hearing transcripts. E.g., United States v. ____ _______________
Grandmaison, 77 F.3d 555, 557 (1st Cir. 1996); United States v. ___________ ______________
LeBlanc, 24 F.3d 340, 342 (1st Cir.), cert. denied, __ U.S. __, _______ _____ ______
115 S. Ct. 250 (1994).
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On March 9, 1994 a grand jury returned an indictment
against 19 defendants, including appellants Pacheco-Rijos and
Miranda- Santiago, charging them with conspiracy to distribute
drugs, and with using firearms in connection with a drug offense.
Apparently, the conspirators hid drug substances, firearms and
proceeds of drug sales in specific locations, guarded by members
of the conspiracy. Members of the conspiracy were also
encouraged to commit -- and committed -- "carjacking" offenses;
armed, they would steal cars and then use the vehicles to
transport drugs back to their storage locations.
The indictment and the PSRs adopted by the appellants
and the district court detailed a criminal enterprise with a
strongly hierarchical structure; some of the accused controlled
the operation, while others served as drug runners and
bodyguards. A superseding indictment, returned on May 12, 1994,
named five additional defendants, including appellant Rivera-
DeCelis.
When arraigned, each defendant entered a plea of not
guilty. In September of 1994, Rivera-DeCelis, Pacheco-Rijos and
Miranda- Santiago, among others, offered to change their pleas
with respect to certain charges. After each plea colloquy,
conducted individually, the court accepted the defendants' pleas.
Each was separately sentenced.
II. DISCUSSION II. DISCUSSION __________
____________________
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We consider the facts with respect to each defendant
and his or her legal challenges in turn.
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A. Ismael Rivera-DeCelis A. Ismael Rivera-DeCelis _____________________
1. Facts 1. Facts
Appellant Rivera-DeCelis was alleged to have been
involved in several phases of the drug conspiracy detailed in the
superseding indictment. He was charged in Count One with
distributing not less than fifty grams of cocaine base, an amount
of not less than five kilograms of cocaine, an amount of not less
than one kilogram of heroin, and some amount of marijuana, in
violation of 21 U.S.C. 841(a)(1) & 846. Counts Three, Four
and Five charged him with possessing and brandishing various
firearms in connection with his drug trafficking, in violation of
21 U.S.C. 924(c)(1).
After an initial plea of not guilty, on September 8,
1994, Rivera-DeCelis offered to change his plea to guilty to
Count One's charge that he acted in violation of 18 U.S.C. 846,
and Count Three's charge that he acted in violation of 18 U.S.C.
924(c)(1). The plea agreement was entered into under Fed. R.
Crim. P. 11(e)(1)(c).2 It provided that the defendant would be
held accountable at sentencing for the distribution of no less
than 15 but no more than 50 kilograms of cocaine, resulting in a
base offense level of 34. See U.S.S.G. 2D1.1(a)(3). The ___
parties also agreed that the defendant was entitled to a three-
____________________
2 Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure
authorizes plea agreements which stipulate specific sentences to
be imposed. In those circumstances, a district court may either
accept the agreement in toto or reject it, giving the defendant
the opportunity to withdraw the plea entirely. Fed. R. Crim. P.
11(e)(4); U.S.S.G. 6B1.3(ps).
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level downward adjustment for acceptance of responsibility, under
U.S.S.G. 3E1.1(b)(1) & (2), reducing his offense level to 31.
The parties further defined the term of imprisonment: In light of
the ten year mandatory minimum sentence facing Rivera-DeCelis
under 21 U.S.C. 841(b)(1)(B), and a criminal history category
of III, they stipulated to a 139 month term of confinement on
Count One to be followed by a 60 month term on Count Three.3
During the plea colloquy, the district judge directly
addressed Rivera-DeCelis. He explained each charge, detailing,
among other things, the time frame of the conspiracy in which the
defendant allegedly was involved (roughly from January of 1993
through March of 1994), the elements of the offenses and the
burden the government would have if it tried to prove its case.4
____________________
3 The 139 month prison term on Count One appears, from the
record before us, to have been the result of negotiation between
the initial plea and sentencing.
4 As to the factual basis of the charges to which the defendant
was offering to plead, the colloquy included the following:
THE COURT: Have you received a copy of the
superseding indictment that mentions you in
Counts One and Three?
THE DEFENDANT: Yes, sir.
THE COURT: Count One is the drug conspiracy
count. There, you are charged with
participating in a conspiracy . . . . The
allegation is that you knowingly and
intentionally conspired, and agreed with a
number of persons to knowingly and
intentionally distribute controlled
substances.
THE DEFENDANT: Yes, sir.
THE COURT: Have with you [sic], possess and
distribute controlled substances,
specifically in an amount of not less than 50
grams of crack cocaine, not less than five
kilograms of regular cocaine, some marijuana,
-8-
He also explained to the defendant the sentences he faced and the
consequences of his plea, inquired about coercion and made sure
the defendant understood the particular strictures of a plea
entered into under Rule 11(e)(1)(c). The defendant agreed to the
facts presented in the indictment, without asserting that there
were any temporal limits to his personal involvement in the
conspiracy.
____________________
and at least one kilogram of heroin. Do you
understand that?
THE DEFENDANT: Yes.
With respect to the firearms charge, the colloquy included:
THE COURT: And that aside from selling drugs
and making money, the different members of
the conspiracy at time possessed weapons,
firearms, to provide protection to the drug
operations or the conspiracy, not only from
innocent people but also from rival gangs,
and to prevent the intervention of law
enforcement officers, and to provide a
certain degree of intimidation . . . of
innocent people . . .
THE DEFENDANT: Yes, sir.
THE COURT: Also, that at times certain
members of the conspiracy, of which you are a
part, carjacked citizens, took their cars
away by force, in order to use the cars for
purposes of -- related to the drug
conspiracy.
THE DEFENDANT: Yes, sir . . . .
THE COURT: You are also pleading guilty to
Count Three, which is the firearms count.
There the government is alleging that from
January of 1993, until on or about March of
1994, you, along with others, knowingly used
and carried firearms, specifically
semiautomatic pistols, during and in relation
to a drug trafficking crime which is
precisely the drug trafficking crime that you
are charged with in Count One.
THE DEFENDANT: Yes, sir.
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Turning to the factual basis of the charges, the judge
asked Rivera-DeCelis whether the defendant was "recognizing [his
guilt] ... for the drug conspiracy participation and also for the
weapons or firearms count," and whether he acknowledged the
punishment he could face. Rivera-DeCelis answered in the
affirmative to both questions.5
At sentencing, the defendant challenged the drug amount
attributed to him in the PSR. Notwithstanding his earlier
admissions, Rivera-DeCelis asserted that he was only involved in
the conspiracy for three months and that the amount of cocaine
reflected in the plea agreement was greater than the amount he
could reasonably have foreseen would have been part of the
conspiracy during his membership in it. The government cast doubt
on the short duration of Rivera-DeCelis' involvement, noting that
he was pictured holding a gun and serving as a bodyguard for one
of the conspiracy's leaders. Logically, the prosecutor argued,
such a responsibility would not devolve to a new and marginal
member of the organization. In any event, even within a 90 day
period, the government contended, the daily quantities of drugs
sold as part of the conspiracy would result in a drug offense
level of over 34.
The district judge did not accept the defendant's
characterization of his involvement and rejected his challenge.
____________________
5 Rivera-DeCelis also admitted that he, as charged in Counts One
and Three, actually possessed and distributed "controlled
substances being a member of a conspiracy," and that he was aware
of the acts of his co-conspirators "involving weapons,
carjackings and proceeds, financial gain, et cetera."
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The judge noted that the benefits of this plea agreement to the
defendant were substantial, since, for instance, no amount of
crack cocaine was attributed to the defendant, a drug "which all
of them were dealing ... without a doubt." Accordingly, the
court adopted a base offense level of 34 and granted the
defendant a three-level reduction for acceptance of
responsibility. U.S.S.G. 3E1.1(b). Based on a criminal
history category of III, Rivera-DeCelis was sentenced on the drug
charge to a prison term of 139 months, at the lower end of the
guideline range,6 to be followed by a term of 60 months on the
firearms charge. The remaining charges against Rivera-DeCelis
were dismissed.
2. Legal Analysis 2. Legal Analysis
a. Challenge to the Guilty Plea a. Challenge to the Guilty Plea
Although he never moved to withdraw his plea prior to
sentencing, Rivera-DeCelis now challenges its validity.7 He
claims that his plea was not voluntary, because the district
court failed to offer an adequate explanation of the charges
against him or to determine whether he understood the
consequences of his plea.
____________________
6 Given a base offense level of 31 and a criminal history of
III, Rivera-DeCelis faced a guideline sentencing range, on the
drug count alone, of 135 - 168 months.
7 To the contrary, Rivera-DeCelis' attorney insisted at
sentencing that the request that his client be held responsible
for a lower drug quantity was based on objections to the PSR, and
that it was not a request to withdraw the defendant's plea. When
pressed further, defense counsel acknowledged that he was not
making a legal argument but offering an allocution on behalf of
his client.
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We do not agree. On the record before us, we find no
error.
1. Legal Standards 1. Legal Standards
A defendant does not enjoy an absolute right to
withdraw a plea of guilty, once it has been entered. United ______
States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996); United States ______ ____ _____________
v. Austin, 948 F.2d 783, 786 (1st Cir. 1991); Fed. R. Crim. P. 11 ______
& 32(e). Where a defendant does not seek to withdraw his plea
before the district court and challenges its validity only on
appeal, he or she faces a high hurdle: The challenge can succeed
only if the defendant demonstrates that there was a substantial
defect in the Rule 11 proceeding itself.8 United States v. ______________
Piper, 35 F.3d 611, 613-14 (1st Cir. 1994), cert. denied, _____ _____ ______
____________________
8 Rule 11(c) provides in pertinent part:
(c) Advice to Defendant. Before accepting a plea of
guilty . . . the court must address the defendant
personally in open court and inform the defendant
of, and determine that the defendant understands
. . .
(1) The nature of the charge to which the plea is
offered . . .
Fed. R. Crim. P. 11(c); see McCarthy v. United States, 394 U.S. ___ ________ ______________
459, 466-67, 471-72 (1969); United States v. Allard, 926 F.2d ______________ ______
1237, 1247 (1st Cir. 1991).
As a general matter, minor technical violations of Rule 11 do
not require that a court set aside a plea of guilty; however,
where the defects in the plea colloquy go to Rule 11's core
concerns -- the absence of coercion, the defendant's
understanding of the charges and the defendant's knowledge of the
consequences of his or her plea -- the Rule mandates that the
plea be set aside. United States v. Cotal-Crespo, 47 F.3d 1, 4-5 _____________ ____________
(1st Cir.), cert. denied, __ U.S.__, 116 S. Ct. 94 (1995); _____ ______
Allard, 926 F.2d at 1244-45. ______
-12-
__U.S.__, 115 S. Ct. 1118 (1995); see also United States v. Japa, ________ _____________ ____
994 F.2d 899, 902 (1st Cir. 1993);9 United States v. Parra- _____________ ______
Iba ez, 936 F.2d 588 (1st Cir. 1991);10 accord United States v. ______ ______ ______________
Cotal-Crespo, 47 F.3d 1, 3 (1st Cir.), cert. denied, __ U.S.__, ____________ _____ ______
116 S. Ct. 94 (1995); Fed. R. Crim. P. 32(e).
In evaluating the validity of an appellant's plea, we
review the totality of the circumstances surrounding the Rule 11
hearing. Cotal-Crespo, 47 F.3d at 4.11 ____________
____________________
9 The Japa Court introduced a slightly different standard for an ____
appellant who did not raise the Rule 11 challenge below: the
defendant must prove that the violation amounts to "a fundamental
defect which inherently results in a complete miscarriage of
justice" or "an omission inconsistent with the rudimentary
demands of fair procedure." Id. at 902. ___
We have remarked that the extent of the burden on a defendant
on direct appeal from a guilty plea "is somewhat cloudy," United ______
States v. Mart nez-Mart nez, 69 F.3d 1215, 1219-20 (1st Cir. ______ _________________
1995), cert. denied, __U.S. __, 116 S. Ct. 1243 (1996), and have _____ ______
suggested that the more imposing standard articulated in Japa ____
might most appropriately operate only in collateral attacks upon
a guilty plea, brought under 18 U.S.C. 2255. Id. at 1220. ___
We need not resolve that question in this case, because the
defendant fails to meet either standard.
10 Although our review does not generally include matters raised
for the first time on appeal, Rule 11 challenges are not waived
if a defendant fails to raise the issue below. Rule 11's core
concerns oblige courts of appeals to review the challenged
processes, since the Rule's strictures go to "'the fairness,
integrity [and] public reputation of judicial proceedings.'"
Parra-Iba ez, 936 F.2d at 593 (citations omitted). ____________
11 The Allard Court noted: "There is no talismanic test for ______
determining whether the core concerns of Rule 11 have been
satisfied. The manner in which the charge is explained and the
method for determining the defendant's understanding necessarily
vary from case to case depending upon the capacity of the
defendant and the attendant circumstances." Allard, 926 F.2d at ______
1245.
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2. The Plea Colloquy 2. The Plea Colloquy
As to the validity of the Rule 11 proceeding below, appellant
Rivera-DeCelis rests his argument on two points: (1) his limited
education and ability to understand the written word, because of
his dyslexia; and (2) the district court's failure to ensure that
Rivera-DeCelis actually had read the superseding indictment under
which he was charged. The government argues that the appellant's
Rule 11 challenge -- at this late hour -- is wholly without
merit.
The government has the better argument.
The core concerns of Rule 11 require that the defendant
be instructed in open court with respect to the "nature of the
charge to which the plea is offered," Fed. R. Crim. P. 11(c)(1),
and that a plea "'cannot be considered truly voluntary unless the
defendant possesses an understanding of the law in relation to
the facts.'" United States v. Broce, 488 U.S. 563, 570 (1989) ______________ _____
(quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)); ________ ______________
Piper, 35 F.3d at 614. _____
In the case before us, the district judge addressed
Rivera-DeCelis personally, directly, and with careful questions
____________________
Factors surrounding the request to set aside a plea come into
play: the plausibility and strength of the proffered reason for a
plea withdrawal; the timing of the request; whether the defendant
now asserts legal innocence; and whether the parties had reached
a plea agreement. See United States v. Pellerito, 878 F.2d 1535, ___ _____________ _________
1537 (1st Cir. 1989), cert. denied, 502 U.S. 862 (1991); Fed. R. _____ ______
Crim. P. 32. As we have noted, "these factors are relevant to
the ultimate issue to be addressed, namely whether the plea was
'knowing, voluntary and intelligent within the meaning of [Fed.
R. Crim. P.] 11.'" United States v. Gray, 63 F.3d 57, 60 (1st _____________ ____
Cir. 1995) (citations omitted).
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designed to ensure that defendant actually understood the
proceedings. The judge specifically explained both the elements
of each offense and the factual accusations against the
defendant. As he walked Rivera-DeCelis through these aspects of
the case against him, the judge inquired -- at each turn --
whether Rivera-DeCelis subjectively understood the situation.
The district judge also made sure that Rivera-DeCelis in fact
grasped the consequences of his plea. Fed. R. Crim. P. 11(c)(1).
Only after assuring himself that Rivera-DeCelis understood the
charges, the facts that formed their bases and the consequences
of his plea, did the district judge ask Rivera-DeCelis to attest
to the facts to which he was pleading guilty.12
Consideration of other factors surrounding the plea
does not yield a better result for the appellant. With respect
to the validity of the proffered reasons for requesting that we
set aside Rivera-DeCelis' plea, we are not persuaded,
particularly given the care with which the district judge
____________________
12 It strikes us that the appellant has turned a legitimate
argument on its head. If the district court had merely made sure
that a dyslexic defendant with only eight years of formal
schooling had read an indictment -- without oral questioning to
ensure actual understanding -- we might find error. See, e.g., ___ ____
United States v. Gray, 63 F.3d 57, 60-61 (1st Cir. 1995) ______________ ____
(reliance on a written document is an insufficient proxy for
personal examination by the court).
That is not the case before us. Given Rivera-DeCelis'
particular circumstances, the district court's direct, probing
and careful questioning of the defendant assures us that the
trial judge was doing as Rule 11 requires, looking to the reality
of the situation faced by the defendant and making sure that the
defendant actually understood the nature of the charges against
him and the consequences of his plea. See Allard, 926 F.2d at ___ ______
1245.
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directly addressed the defendant on each issue of central concern
under Rule 11. The timing of the request, made for the first
time before an appellate court, also counsels against setting
aside the plea. The defendant made no assertion of legal
innocence; and, finally, the plea was offered pursuant to a
negotiated plea agreement.
In short, the district judge fully addressed the core
concerns of Rule 11. Accordingly, we decline to set aside
appellant Rivera-DeCelis' plea of guilty.
b. Sentencing Challenge: Relevant Conduct b. Sentencing Challenge: Relevant Conduct
Rivera-DeCelis also challenges his sentence on the
ground that the drug quantity attributed to him was incorrectly
inflated and did not reflect his limited participation in the
conspiracy. The error is based, the appellant argues, on the
district court's failure to make individualized findings. The
government disagrees, stating that the sentencing court's
findings were sufficiently precise and based solidly on the
evidence presented.
We review the district judge's quantity determinations
at sentencing for clear error. United States v. Jim nez ______________ _______
Mart nez, 83 F.3d 488, 492 (1st Cir. 1996); 18 U.S.C. 3742(e). ________
The appellant's argument is wholly without merit.
Under U.S.S.G. 1B1.3, where a defendant engaged in
"jointly undertaken criminal activity," he or she may be
sentenced for his or her own acts and "all reasonably foreseeable
acts and omissions of others in furtherance of [that] ...
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activity." U.S.S.G. 1B1.3(a)(1)(B) & comment n.1. In the
context of drug trafficking offenses, where sentences are driven
largely by the amount of drugs for which a defendant is held
accountable, "the base offense level of a co-conspirator ...
should reflect only the quantity of drugs he reasonably foresees
is the object of the conspiracy to distribute after he joins the
conspiracy." United States v. O'Campo, 973 F.2d 1015, 1026 (1st _____________ _______
Cir. 1992); see also United States v. Campbell, 61 F.3d 976, 982 ________ _____________ ________
(1st Cir. 1995), cert. denied, __ U.S. __, 116 S. Ct. 1556 _____ ______
(1996); U.S.S.G. 2D1.1(c) (drug quantity table).
It is well settled that defendants in a drug conspiracy
are not only responsible for drug quantities which they
themselves sold, transported or negotiated; they are also
responsible for drug amounts which, from their particular
vantage points in the conspiracy, it was reasonably foreseeable
would be involved, and which were in fact involved, in the
offense. See, e.g., United States v. Lombard, 72 F.3d 170, 176 ___ ____ _____________ _______
(1st Cir. 1995); United States v. Carrozza, 4 F.3d 70, 80 (1st _____________ ________
Cir. 1993), cert. denied, __ U.S. __, 114 S. Ct. 1644 (1994); _____ ______
U.S.S.G. 1B1.3 & commentary. It is the project of the
sentencing court to determine what a particular defendant could
reasonably have foreseen. Carrozza, 4 F.3d at 76. ________
In this case, the sentencing judge carried out this
responsibility without error.
It is undisputed that Rivera-DeCelis pled guilty to
engaging in jointly undertaken criminal activity triggering the
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application of section 1B1.3(a)(1)(B). At his plea hearing,
Rivera-DeCelis accepted the factual recitation of the indictment,
indicating an involvement in the conspiracy from January 1993
through March of 1994. He also acknowledged knowing of
trafficking in crack cocaine, cocaine, heroin and marijuana over
that period of time. His plea, indeed, situated him in the
center of the conspiracy's activities, aware of its use of
firearms as well as the extent of the drug dealing.
The district judge was not persuaded by defense
counsel's explanation that he had urged his client to accept the
plea because he was unsure he could confirm the circumscribed
scope of the defendant's involvement.13 The defendant did little
else to confirm that his vantage point was so distant from the
main activity and he stood in that place for such a fleeting
moment that he could not reasonably have foreseen that not less
than 15 but not more than 50 kilograms of cocaine would be
involved in the offense. Notably, he never suggested -- much
less proved -- a precise amount for which he should be held
accountable.
____________________
13 When asked why the defendant would sign a Rule 11(e)(1)(C)
agreement for a specific sentence, if he believed that the true
nature of his involvement would result in a much lower sentence,
the defendant's attorney explained:
. . . when I agreed to that, I was under the
impression . . . that three months could not
be corroborated by the Government. Now three
months could be corroborated by the
Government . . . the amount of cocaine would
-- should -- be less than the one in the
indictment.
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Against this shaky challenge, the government offered
sturdy support for attributing the defendant with at least 15 to
50 kilograms of cocaine. It reminded the sentencing court of the
testimony of a co-conspirator, which had indicated that daily
drug sales of which Rivera-DeCelis would have been aware amounted
to well over 50 kilograms of cocaine in a matter of months.14 It
also cast doubt on the allegedly limited nature of Rivera-
DeCelis' involvement by focusing the court's attention on a
photograph in which Rivera-DeCelis is pictured, holding a
firearm, as a bodyguard to the leader of the conspiracy.15
____________________
14 The government made the following argument at sentencing:
MR. PEREIRA: Your Honor, initially let me
address the issue of the quantity of drugs so
that the record is clear as to that. We
provided, of course, to this defendant as we
did to all defendants, the grand jury
transcripts of Ram n Alexandro L pez and it's
part of the record of this court. . . . [H]e
is asked, have you ever heard in terms from
anybody or your own estimation that a kilo of
cocaine gets consumed or cooked into crack
every 11 days? The answer to that is,
yes. . . .
Now, even if we assume that this individual,
that this present defendant, Ismael Rivera,
participated in this conspiracy only 90 days,
that is eight kilos of crack cocaine. 1.5
kilos of crack cocaine is a level 38 offense
in the 1994 guidelines, so, [it] certainly
covers the sentence which he agreed to.
15 We find the government's rendition wholly believable. Where,
as here, a view of the record is entirely plausible, the
sentencing court's adoption of that view cannot amount to clear
error. See United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. ___ _____________ _______
1992).
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On this record, the district judge did not clearly err
in adopting the government's reasoning, noting that the defendant
reaped a benefit from the plea agreement and deciding that
Rivera-DeCelis' base offense level should be 34.
We therefore affirm the district court's sentencing
determination.
B. Carmen Pacheco-Rijos B. Carmen Pacheco-Rijos ____________________
1. Facts 1. Facts
Under the indictment returned in March of 1994,
appellant Pacheco-Rijos was charged with four offenses: Count One
charged her with conspiracy to distribute drugs, in amounts of
not less than fifty grams of cocaine base, not less than five
kilograms of cocaine, not less than one kilogram of heroin, and
some marijuana, from in or about January of 1993 until in or
about March of 1994, in violation of 21 U.S.C. 841(a)(1) and
846; Counts Three, Four and Five charged her, along with other
co-defendants, with knowingly using and carrying firearms during
and in relation to her drug trafficking, in violation of 18
U.S.C. 921(a)(3) & (c)(1) & 924(c)(1).
Pacheco-Rijos was arraigned on March 14, 1994, at which
time she pled not guilty. On September 7, 1994, she changed her
plea to guilty to Count One, which charged her with violating 21
U.S.C. 846.16 Her plea was offered pursuant to Rule
____________________
16 The underlying offense was 21 U.S.C. 841(a)(1), which
prohibits the knowing or intentional manufacturing, distributing
or possessing with intent to manufacture, distribute or dispense
a controlled substance. She did not plead guilty to any firearms
charges.
-20-
11(e)(1)(A) & (B) of the Federal Rules of Criminal Procedure,
under which the parties may recommend sentencing terms but those
terms are not binding upon the court. Cf. Fed. R. Crim. P. ___
11(e)(1)(C).
The agreement recommended a base offense level of 28
under U.S.S.G. 2D1.1 and a downward adjustment of three levels
for acceptance of responsibility under U.S.S.G. 3E1.1(b),
resulting in an offense level of 25. The defendant acknowledged
that although those preliminary calculations resulted in a
guideline range of 57 to 71 months, she could receive a statutory
minimum of 60 months imprisonment. The agreement, however, left
the door open for application of other provisions which might
affect her sentence.17
At the outset of the sentencing hearing, the district
judge mischaracterized the plea agreement as a Rule 11(e)(1)(C)
agreement, under which the sentencing judge would be required to
accept the agreement in toto or reject it, thereby allowing the
defendant to withdraw her plea. Such an agreement would have
represented the parties' negotiations concerning all the
guideline provisions that should determine the sentence.
Pacheco-Rijos' plea agreement, however, did not pretend
to such completeness.
____________________
17 The agreement stated: "The United States and defendant
stipulate a sixty (60) month term of confinement. No agreement
concerning the application of any other sentencing guideline has
been entered into by the parties. All other aspects of the
sentence are left to the sound discretion of the Court."
-21-
When counsel for Pacheco-Rijos moved for a three-level
adjustment for acceptance of responsibility, the court accepted
it both because the plea agreement had contemplated such an
adjustment and because he found Pacheco-Rijos' conduct merited
it. He accepted an offense level of 25, with a guideline range
of 57 to 71 months.
However, when counsel requested the application of the
safety valve provision, 21 U.S.C. 3553(f) and U.S.S.G. 5C1.2,
and, if granted, a further two-level reduction for minor
participant status under U.S.S.G. 3B1.2(b), requests that were
not in the plea agreement, the district court declined to accept
them. The appellant argued that she met all the requirements of
the safety valve provision. The government responded that, among
other things, Pacheco-Rijos had failed honestly to disclose her
own participation in the conspiracy.18 In support of its claim,
the government stated simply that her failure "can be gleaned
from the Presentence Report in this case."
The prosecutor's citation to the PSR is perplexing. It
appears that initially the PSR had not placed Pacheco-Rijos among
the defendants for whom the government had designated a minimal
or minor role, but among those for whom no role had been
____________________
18 The government also argued that although this defendant did
not participate in conduct that led to death or serious bodily
injury to any person, others in the conspiracy did, thus
rendering her ineligible for the benefits of the safety valve
provision. The district court did not address this argument,
finding that Pacheco-Rijos did not qualify for relief under the
safety valve provision because she failed to cooperate fully.
-22-
"adjudicated."19 However, after reviewing the objection of the
defendant with respect to the scope of her participation, the
probation officer, in the final PSR, adopted Pacheco-Rijos' own
view of her participation,20 designating her as a "minor
participant" and characterizing her role as "passive."
Notwithstanding, the sentencing judge denied the
request for relief from the mandatory minimum sentence. He
summarily concluded: "5C1.2 does not apply, because she has not
cooperated fully as required by guideline Section 5C1.2(5)." In
____________________
19 The PSRs for all of the appellants contained the same factual
recitation and structure. It therefore merits some attention
that Rivera-DeCelis' PSR, prepared before Pacheco-Rijos' final
PSR, contained the following: "[b]ased on the defendants' role in
the drug enterprise" other defendants were identified by the
government as being "minimal participants," or "minor
participants," while Pacheco-Rijos was listed among those who had
"not been adjudicated any role adjustment" since she, along with
others, were "considered equally culpable in their participation
in the offense."
After Pacheco-Rijos objected to the probation officer's
failure to designate her as a minor participant, the PSR was
altered, not only in terms of the ultimate calculation but also
in terms of the factual recitation. In her final PSR, the facts
indicated that the "government identified" Pacheco-Rijos as a
minor participant.
20 Before sentencing, counsel for Pacheco-Rijos submitted a
written statement concerning the defendant's involvement in the
offense and specifically elaborating on her contention that she
had a role in the enterprise but one more limited than that
suggested in the indictment. She conceded that other co-
defendants used Pacheco-Rijos' home as a place to pack controlled
substances, that she knew generally of these activities and that
she did little to stop it. She denied ever handling money or
drugs in the illegal operation and ever being at all involved in
the possession or concealment of firearms. Further, while
Pacheco-Rijos lived with three of the co-defendants in this case,
Luis Antonio Garc a, Agustin Aponte-Merced and Juan Jos Miranda-
Santiago, she vowed to having no other knowledge of their illegal
acts.
-23-
addition, he stated: "And besides that, there is a stipulation in
the plea agreement [that] she be sentenced to 60 months. That
was good enough in September, [so it] should be good enough
today."
In the light of his rejection of the safety valve
provision, the judge indicated that there was no need to consider
whether Pacheco-Rijos should have been given a two-level
adjustment based on her role in the offense, an adjustment that
would have brought her sentence under the Guidelines still
further below the 60 month statutory minimum.21
Continuing the same apparent misapprehension under
which he labored from the beginning, the district judge concluded
the sentencing hearing by reiterating: "I should make it very
clear on this record that her plea agreement was an 11 -- Federal
Rule Criminal Procedure 11(e)(1)(C) plea. And therefore the 60
months that I have given her was precisely what she bargained for
during the plea negotiations."
2. Legal Analysis: The Safety Valve Provision 2. Legal Analysis: The Safety Valve Provision
Appellant Pacheco-Rijos argues that the sentencing
court erred in declining to grant her relief from the mandatory
____________________
21 Here again, the sentencing court focused on the plea
agreement in a way that suggested he believed it to have been
binding: "I'm going to leave it as it was in the plea agreement.
I will not honor that adjustment. And we're going to leave it at
25. . . . This Court understands that the defendant is not
entitled toa minorparticipant adjustmentunderU.S.S.G. 3B1.2(b)."
This conclusion is at odds with the district court's own
judgment in this case, in which the court states that it adopts
the findings and sentence calculations of the PSR without
exception. The PSR, however, had granted Pacheco-Rijos the minor
participant adjustment.
-24-
minimum sentence for the drug trafficking in which she admits she
was involved. See 18 U.S.C. 3553(f); U.S.S.G. 5C1.2. The ___
government responds that the sentencing court appropriately
determined that she was not entitled, in the first instance, to
relief from the mandatory minimum, and that, in any event, the
district court's decision does not amount to clear error.
We review for clear error the district court's factual
determinations with respect to whether the appellant was entitled
to relief from the mandatory minimum under U.S.S.G. 5C1.2.
United States v. Rodr guez, 60 F.3d 193, 195 n.1 (5th Cir.) ______________ _________
(court's refusal to apply 5C1.2 is a factual finding reviewed
for clear error), cert. denied, __U.S.__, 116 S. Ct. 542 (1995); _____ ______
see also UnitedStates v. Monta ez,82 F.3d 520,521 (1st Cir.1996). ________ ____________ ________
We begin our examination with an observation. The
review is complicated by the paucity of detail in the record
below and our concern for two obvious mistakes in the sentencing
hearing which shaped the outcome: first, that the district court
wrongly believed that the plea agreement was a binding one and
Pacheco-Rijos was arguing for an outcome for which she had not
negotiated; and second, that the PSR somehow supported the
government's position on Pacheco-Rijos' cooperation, when it did
not.
When Congress enacted the Violent Crime Control and Law
Enforcement Act of 1994, it passed into law a safety valve
provision which permits judicial departures for some low-level,
first-time offenders who otherwise would face mandatory minimum
-25-
sentences. Pub. L. No. 103-322 80001, 108 Stat. 1796, 1985
(1994)(amending 18 U.S.C. 3553).22
Under 18 U.S.C. 3553(f), a defendant may avoid the
mandatory minimum and be sentenced below the applicable guideline
term, if he or she meets the five requirements set forth in the
provision. The section provides in pertinent part:
. . . the court shall impose a sentence . . .
without regard to any statutory minimum
sentence, if the court finds at sentencing,
after the Government has been afforded the
opportunity to make a recommendation, that:
(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines;
(2) that defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or induce
another participant to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
the offense . . .; and (5) not later than the
time of the sentencing hearing, the defendant
has truthfully provided to the Government all
information and evidence the defendant has
____________________
22 The safety valve provision was enacted in response to
concerns that mandatory minimums are not compatible with the
guideline regime. The provision addressed the following irony:
Mandatory minimums had, and have, little real impact on the
sentences received by serious repeat offenders, where the
guideline calculation arrives at a base offense level higher than
the mandatory minimum, and where mitigating factors may therefore
be considered. Prior to passage of the section 3553(f), however,
for the least culpable offenders, mandatory minimums operated to
block sentences from reflecting the very mitigating factors that
could ease sentences of the more culpable. Ironically, courts
were obliged to impose upon the least culpable defendants
sentences similar to those imposed on more culpable counterparts.
As a House Report noted, the safety valve provision was designed
to "permit . . . greater integration between sentencing guideline
mitigating factors and mandatory minimums . . ." H.R. Rep.
No.460, 103d Cong., 2d Sess. 4 (1994).
-26-
concerning the offense or offenses that were
part of the same course of conduct or of a
common scheme or plan, but the fact that the
defendant has no relevant or useful other
information to provide or that the Government
is already aware of the information shall not
preclude a determination by the court that
the defendant has complied with this
requirement.
18 U.S.C. 3553(f); see also U.S.S.G. 5C1.2 (authorizes _________
sentence below the mandatory minimum for specific offenses,
subject to compliance with section 3553(f)); Monta ez, 82 F.3d at ________
521 (discussion of the aims of the legislation). Notably,
whether there is a binding plea agreement or, as here, a non-
binding agreement, if it is determined that a defendant has met
the five requirements of the provision, the judge is required to
set aside the mandatory minimum and sentence the defendant under
the Guidelines.
In this case, the district judge denied application of
the safety valve provision, focusing only on the issue of
Pacheco-Rijos' cooperation.23 Apparently accepting the
government's argument that the facts which could be "gleaned"
from the PSR supported denying application of section 3553(f)(5),
the judge determined that Pacheco-Rijos did not deserve relief
____________________
23 As to the other requirements, there is no dispute that
Pacheco-Rijos was a first-time offender and that she was not a
manager or leader of the conspiracy. Nor has the government
contended that she used threats of violence in carrying out her
role. The disputes arose in the context of sections 3553(f)(3) &
(5). At sentencing, the government contended that: (1) the
offense to which she pled guilty involved serious bodily injury
or death; and (2) that Pacheco-Rijos failed to meet the final
requirement of the safety valve provision, namely, that she fully
disclose her involvement in the offense. As noted above, the
court addressed only the government's second argument.
-27-
from her mandatory minimum sentence because she had failed to
"cooperate fully." In so deciding, he also stressed that
Pacheco-Rijos had not negotiated for relief from the mandatory
minimum in her plea agreement, an agreement which, as noted
above, he incorrectly believed to be binding.
Section 3553(f)(5) requires that defendants "truthfully
provide the government" no later than at sentencing all the
information they have regarding "the offense or offenses that
were part of the same course of conduct or part of a common
scheme or plan." 18 U.S.C. 3553(f)(5); U.S.S.G. 5C1.2.
Questions with respect to the scope of both a
defendant's duty to "provide" information -- and the very nature
of that information -- have already confronted this Court. In
United States v. Wrenn, 66 F.3d 1, 3 (1st Cir. 1995), we held ______________ _____
that where the only disclosure to the government was made
inadvertently -- and through the government's own efforts to
intercept the defendant's conversations -- that defendant could
not be said to have "provided" the information to the government.
Further, the Wrenn Court noted that where the defendant had _____
indicated that he knew the identity of customers involved in a
drug trafficking enterprise, but he refused to provide any names,
it certainly was not erroneous for the district court to
determine that the defendant had failed to provide "all"
information which he concededly had. Id. ___
The question of scope was further addressed in United ______
States v. Monta ez, 82 F.3d 520 (1st Cir. 1996), in which this ______ ________
-28-
Court confronted a slightly different question: whether the
requirement that a defendant truthfully provide "all" information
established an affirmative duty on the part of that defendant to
offer himself or herself up to the government for debriefing.
Id. at 522-523. While we determined that section 3553(f)(5) does ___
not require that much,24 we agreed with the district court that
what the defendant provided in that case was patently inadequate.
For although Monta ez agreed that he was supplied drugs that he
then delivered, he offered no plausible reason why he did not
provide the government with the names of his drug suppliers.
Under the circumstances, we found that Monta ez "did not disclose
information that he might reasonably be expected to possess, nor
persuasively explain its absence." Id. at 523; see also Wrenn, ___ _________ _____
66 F.3d at 3.
This case is not like Wrenn or Monta ez. In a _____ ________
submission by her counsel, included as part of her PSR, Pacheco-
Rijos explained the limits of her involvement in the conspiracy:
She was a passive participant, knowing that drugs were stored in
the house and doing little to stop it. She said that she never
handled the drugs, nor was she aware of the firearms.
That characterization was never objected to nor
explicitly contradicted by the government. Furthermore, it
appears to have been accepted by the probation department whose
____________________
24 The fact that a full debriefing is not statutorily required
does not provide a full answer to the question. The Monta ez ________
Court noted: "[A]s a practical matter, a defendant who declines
to offer himself for a debriefing takes a very dangerous course."
Monta ez, 82 F.3d at 523. ________
-29-
amended report recommended granting Pacheco-Rijos a two-level
adjustment as a minor participant and specifically characterized
her as a "passive" member of the conspiracy.
While it is entirely possible that a minor participant
in the criminal activities might know more than her designated
role suggests, the government offered nothing concrete to so
indicate. In this case, as distinguished from Wrenn or Monta ez, _____ ________
the government did not rebut a facially plausible tale of limited
involvement by pointing to information this defendant must have
known; there was no allegation that this defendant knew the names
of drug suppliers or customers and refused to indicate those
names. There was no specific information the government alleged
that Pacheco-Rijos had and failed to provide.
The government cannot assure success simply by saying,
"We don't believe the defendant," and doing nothing more. If it
could, it would effectively eliminate the self-conscious
difference between the safety valve provision, U.S.S.G. 5C1.2,
which obligates the district court to determine if the defendant
has truthfully provided all information, see Monta ez, 82 F.3d at ___ ________
523, and the substantial assistance provision, U.S.S.G. 5K1.1,
which permits, upon the government's motion and at the court's
discretion, a downward adjustment for certain defendants who have
provided substantial assistance to the government.25
____________________
25 By this analysis, we do not suggest any change in the
defendant's ultimate burden of proof under U.S.S.G. 5C1.2. The
defendant plainly has the burden of proving, by a preponderance
of the evidence, entitlement to relief under section 3553(f).
However, where a defendant in her submissions credibly
-30-
In the PSR, there was one conceivable basis for the
government's position, a basis which, standing alone, is wholly
inadequate: that because Pacheco-Rijos shared living quarters
with other co-defendants,26 she must have had more information
than she provided to the government.
Section 3553(f)(5) does not invite such speculation.
If mere conjecture based on personal relationships could bar
application of section 3553(f)(5), in all cases where minor
participants knew others more involved, the safety valve
provision would be beyond their grasp. Such a result was not
intended by Congress and cannot be permitted here. Therefore,
district court's bare conclusion that Pacheco-Rijos did not
"cooperate fully," absent either specific factual findings or
easily recognizable support in the record, cannot be enough to
thwart her effort to avoid imposition of a mandatory minimum
sentence.27
____________________
demonstrates that she has provided the government with all the
information she reasonably was expected to possess, Monta ez 82 ________
F.3d at 523, in order to defeat her claim, the government must at
least come forward with some sound reason to suggest otherwise.
26 One co-defendant apparently shared a somewhat independent
living quarters with Pacheco-Rijos' daughter.
27 We note one other strong inference from the record: that the
district court did not apply this provision out of deference to
the plea agreement into which the parties had entered and which
he erroneously believed would be completely voided unless he
accepted the sentencing terms. This was not the case. In any
event, a plea agreement -- even a binding one -- does not replace
the independent determination of the district court as to whether
this provision applies. See Carrozza, 4 F.3d at 87; U.S.S.G. ___ ________
6B1.2(c) & commentary.
-31-
Accordingly, we vacate the sentence and remand this
case for the purpose of allowing the district court to revisit
this issue and clarify the record by filing supplemental
findings.28 In the event that the court finds its initial
calculation in error, it should so identify and return, as well,
to the issue of other adjustments, if appropriate, under the
Guidelines.
C. Juan Jos Miranda-Santiago Juan Jos Miranda-Santiago __________________________
1. Facts 1. Facts
Appellant Miranda-Santiago was indicted on the drug and
firearms charges detailed in Counts One, Three, Four and Five of
the superseding indictment in this case. At his arraignment,
Miranda-Santiago pled not guilty to all charges. On September 7,
1994, he offered to change his plea to guilty. Under a plea
agreement entered into pursuant to Rule 11(e)(1)(A) & (B),
Miranda-Santiago offered to plead guilty to Count One, charging
him with possession with intent to distribute narcotics, 21
U.S.C. 846. In addition, the parties recommended to the court
a base offense level of 30, with a three-level reduction for
acceptance of responsibility, under U.S.S.G. 3E1.1(b)(1) & (2),
____________________
28 The remaining argument made by the government below -- that
the offense involved serious bodily injury or death thereby
disqualifying Pacheco-Rijos from the benefits of the safety valve
provision -- lacks merit. It therefore does not provide an
alternative reason to affirm the district court's decision.
Indeed, the government has all but abandoned the argument in this
forum.
-32-
resulting in a sentencing range of 70 - 87 months.29 More
specifically, the parties agreed to ask for a sentence of 84
months.
The Miranda-Santiago PSR contained the same general
recital of the facts as that contained in the other PSRs
discussed above. As to Miranda-Santiago's role in the
enterprise, the PSR indicated that this defendant worked as a
drug distributor. He was not identified as someone who used
firearms or provided protection for the operation. The PSR
designated him as a minor participant in the offense.
Notwithstanding that finding, the probation officer did not
include a two-level downward adjustment as part of the sentencing
calculation. The PSR recommended a base level of 30, with only a
three-level reduction for acceptance of responsibility.
The appellant was sentenced on January 11, 1995.
During the hearing, the defendant voiced no objection to the
findings contained in the PSR.30 Although he did not do so
____________________
29 The parties had recommended that, for sentencing purposes,
the defendant be held accountable for at least 3.5 but no more
than 5 kilograms of cocaine. Accordingly, the base offense level
in this case was set at 30. U.S.S.G. 2D1.1. The defendant
faced a mandatory minimum five year term of imprisonment under 21
U.S.C. 841(b)(1)(B).
30 The district judge asked the defendant's counsel if there
were any objections to the PSR. He reported that there were none
and did not ask the district court judge to make specific role-
in-the-offense findings. The judge also asked the defendant if
he had reviewed the PSR with his attorney and if he any
objections to it. Miranda-Santiago responded that he had
discussed the report with counsel and that he had no objections
to it.
-33-
during the sentencing hearing, in the written judgment the judge
adopted the PSR's factual findings, without exception. The
district court arrived at a base offense level of 27 and
sentenced Miranda-Santiago to a prison term of 78 months,
eighteen months above the mandatory minimum for that offense.
2. Legal Analysis: Minor Participant 2. Legal Analysis: Minor Participant
Adjustment Adjustment
On appeal, Miranda-Santiago challenges his sentence,
arguing that the district court erred by failing to adjust his
offense level downward two levels for his role in the offense.
The appellant contends that since the sentencing court adopted
the factual findings of the PSR, the decision not to grant
Miranda-Santiago a minor participant adjustment was a simple
misapplication of the Guidelines. Our review -- notwithstanding
the appellant's failure to raise the issue below -- should be
plenary and the sentence vacated.
The government disagrees and makes, essentially, two
arguments: First, it contends that, as a procedural matter, this
Court ought not review this issue because the appellant waived is
rights by not raising the question below. Second, the government
asserts that, even if the issue is not waived, the appellant
____________________
Before this Court, appellant argues that he nor his counsel
noticed the inconsistency within the report. Defendant's counsel
notes that Miranda-Santiago is illiterate, having only stayed in
school through the sixth grade and that since he is Spanish-
speaking and does not understand English, his only review of the
PSR came through an oral translation of its nineteen pages.
-34-
challenges a factual determination at sentencing and the
determination was not clear error.
We will consider each of the government's arguments in
turn.
a. Waiver a. Waiver
The government argues that Miranda-Santiago, in voicing
no objection to the PSR at sentencing, has waived his right to
raise this issue on appeal. The appellant argues that neither
counsel nor the appellant noticed the error, and that,
particularly given the pressures put on non-English speaking
defendants with respect to lengthy reports only orally translated
into Spanish, the absence of an objection should not constitute
waiver.
We find that this defendant, given these circumstances,
forfeited his rights but did not waive them. The difference is
critical: "Whereas forfeiture is the failure to make a timely
assertion of a right, waiver is the 'intentional relinquishment
or abandonment of a known right.'" United States v. Olano, 507 _____________ _____
U.S. 725, 733 (1993); see also Carrozza, 4 F.3d at 87 & n.13. ________ ________
Under Olano, the defendant who forfeited his right is entitled to _____
review for plain error. This is a compelling case for the
doctrine. After all, the claimed error could well have an impact
on the length of defendant's incarceration.
-35-
b. Standard of Review b. Standard of Review
The standard of review is nonetheless imposing. The
appellant seeks the benefit of a plenary review of the question.
We disagree. Where a defendant has failed to raise the legal
issue below, the issue can be examined only for plain error.31
Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 730-32. _____
c. Minor Participant Adjustment c. Minor Participant Adjustment
When a defendant is determined to be a "minor" or
"minimal" participant in criminal activity, a sentencing court is
directed to decrease the base offense level. U.S.S.G. 3B1.2(a)
& (b).32 A minor participant is one "who plays a part in
committing the offense that makes him substantially less culpable
than the average participant." U.S.S.G. 3B1.2, comment
(backg'd).33
____________________
31 The plain error standard requires that the appellant
demonstrate that: (1) there was an "error;" (2) it was "plain;"
and (3) it affected "the substantial rights" of the defendant.
E.g., United States v. Olano, 507 U.S. at 732-33. Even if a ____ _____________ _____
defendant meets the standard established by the Olano Court, _____
appellate courts maintain discretion to recognize the error and
are directed to consider whether the error affects "the fairness,
integrity or public reputation of judicial proceedings." Id. at ___
732, 735.
32 Minimal participation merits a four-level decrease; U.S.S.G.
1B1.2(a); minor participation merits a two-level decrease,
U.S.S.G. 1B1.2(b).
The appellant contends -- and the government initially agreed
-- that Miranda-Santiago was a minor participant in the criminal
enterprise.
33 The defendant carries the burden of proving that he was a
minor participant entitled to a two-level decrease under U.S.S.G.
3B1.2. E.g., United States v. Ocasio-Rivera, 991 F.2d 1, 3 ____ _____________ _____________
(1st Cir. 1993).
-36-
On appeal, Miranda-Santiago argues that he was entitled
to that reduction, that, indeed, the district court adopted
factual findings consistent with granting the reduction and that
the Court committed plain error in denying him the benefit of the
role-in-the-offense adjustment. The government argues that the
defendant was not entitled to the adjustment in the first
instance and that the sentencing should not be disturbed at this
late hour, in any event.
The appellant has the better argument.
It is a fundamental obligation of a district court at
sentencing to "state in open court the reasons for its imposition
of the particular sentence." 19 U.S.C. 3553(c). To accomplish
this goal, the court ordinarily must make "reasonably specific
findings" and "explain, generally, how it computed the applicable
guideline range." United States v. McDowell, 918 F.2d 1004, 1012 _____________ ________
(1st Cir. 1990).
This obligation has become particularly critical since
the enactment of the Sentencing Guidelines. Under the guideline
regime, factual determinations made by the sentencing judge may
have a profound effect on the length of defendant's
incarceration. Ensuring our ability to engage in meaningful
review of those findings is essential. So while we have found
that a sentencing court can comply with section 3553(c) by
adopting findings from the PSR, see, e.g., United States v. ___ ____ _____________
Savoie, 985 F.2d 612, 618 (1st Cir. 1993), this technique cannot ______
be employed when the PSR itself is unclear or inherently
-37-
contradictory. Moreover, we have repeatedly urged district
courts, in the interests of buttressing sentencing calculations
and facilitating appellate review, to make certain that the bases
of the calculations are clearly set forth. See United States v. ___ _____________
Van, 87 F.3d 1, 2-3 (1st Cir. 1996) (collecting cases). ___
In this case, the district judge made few findings at
the sentencing hearing. In his judgment, he simply adopted the
PSR, in toto. There is a problem with that procedure in this
case: The PSR, as best we can decipher it, judged Miranda-
Santiago a minor participant in the conspiracy. It was merely in
calculating the sentence that this finding did not translate into
a two-level downward adjustment. The record therefore does not
provide an adequate factual basis for the district court's
determination with respect to Miranda-Santiago's role.
This error is clear, obvious, and potentially affects
the appellant's substantial rights. Accordingly, we vacate this
sentence and remand this case to the district court for the
purpose of having the court file supplemental findings with
respect to appellant Miranda-Santiago's role in the offense. In
the event that the district court finds its computation in error,
the court should include such a determination in its findings.
III. CONCLUSION III. CONCLUSION __________
The convictions of all appellants are affirmed. The ________
sentence of appellant Rivera-DeCelis is also affirmed. The ________
sentences of the appellants Pacheco-Rijos and Miranda-Santiago
are vacated, and their cases are remanded for further proceedings _______ ________
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consistent with this opinion.
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Document Info
Docket Number： 95-1301
Filed Date： 9/19/1996
Precedential Status： Precedential
Modified Date： 3/3/2016