United States v. Cintron-Fernandez ( 2004 )

United States Court of Appeals
For the First Circuit
No. 03-1104
UNITED STATES,
Appellant,
v.
JORGE CINTRÓN-FERNÁNDEZ, a/k/a JORGE CINTRÓN, JR.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Ara B. Gershengorn, United States Department of Justice, with
whom H.S. Garcia, United States Attorney, Robert D. McCallum,
Assistant Attorney General, Kathleen A. Kane and Michael S. Raab,
Civil Division, United States Department of Justice, were on brief
for appellant.
Luis F. Camacho for appellee.
February 3, 2004
CAMPBELL, Senior Circuit Judge. Defendant-Appellee,
Jorge Cintron-Fernandez, was convicted in the United States
District Court for the District of Puerto Rico on his plea of
guilty to charges relating to the adulteration and misbranding of
frozen food products. After determining the amount of consumer
loss, the court ruled that Cintron-Fernandez had a total offense
level of 12 and a criminal history category of I, which would
require a minimum sentence of ten months imprisonment under the
Sentencing Guidelines. U.S.S.G. § 5A (Table). The district court
sentenced Cintron-Fernandez to five months imprisonment but
substituted home confinement in lieu of incarceration for that
term. The court also imposed three years of supervised release,
five months of which were to be served in accordance with the Home
Confinement Program. The government appeals, arguing that the
district court imposed an illegal sentence. We vacate the sentence
and remand for resentencing.
I. BACKGROUND
"Because this appeal involves sentencing issues following
a guilty plea, we take the background facts from the presentence
report." United States v. Brady, 168 F.3d 574, 576 (1st Cir.
1999).
From August of 1991 until at least December of 1997,
Jocel Manufacturing Corporation ("Jocel") manufactured and sold
frozen desserts, including ones labeled "Caparra Ice Cream" and
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"Rico," to restaurants and wholesale and retail customers in Puerto
Rico. During most of that period, Cintron-Fernandez's father,
Jorge Cintron-Renta, was the overall manager of Jocel, and Cintron-
Fernandez was Jocel's production manager with responsibility for
the production of food products.
In 1991 and 1992, the United States Food and Drug
Administration ("the FDA") warned Cintron-Renta and Cintron-
Fernandez of the requirement that food labeled as "ice cream"
contain not less than ten percent milkfat. 21 C.F.R. §
135.110(a)(2). Notwithstanding this warning, Cintron-Renta and
Cintron-Fernandez continued to produce and sell Caparra ice cream
with less than ten percent milkfat, and they misled the FDA about
the true content and labeling of the product. Thus, while Cintron-
Renta promised the FDA that Jocel would revise its formula so that
its ice cream would contain at least ten percent milkfat, he and
Cintron-Fernandez instructed Jocel's employees to use a mixture of
coconut oil and milkfat for the "Caparra Ice Cream" base that
contained less than ten percent milkfat. They packed this product
into containers with labels that failed to list coconut oil as an
ingredient. Ultimately, Jocel sold "Caparra Ice Cream" to the
public without notifying customers that it contained less than ten
percent milkfat or that it contained coconut oil. This conduct
occurred over a period of at least 21 months and is estimated to
have resulted in a loss to consumers of at least $107,706.40.
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On April 5, 2000, a federal grand jury indicted Cintron-
Fernandez, Cintron-Renta, and Jocel Manufacturing Corporation, for
conspiracy, adulteration of food, misbranding of food, and false,
fictitious, and fraudulent claims against the United States. After
discovery, Cintron-Fernandez entered into a plea agreement with the
United States in which he agreed to plead guilty to Counts One and
Six of the indictment and to adopt the government's version of the
facts. Count One charged that he had unlawfully, knowingly,
wilfully, and intentionally combined and confederated with others
to cause, with the intent to defraud or mislead, food labeled as
"ice cream" to be adulterated and misbranded while the food was
held for sale, in violation of 21 U.S.C. § 331(k), and that he had
knowingly executed a scheme to defraud and obtain money by means of
materially false and fraudulent representations and promises
through the United States Postal Service, in violation of 18 U.S.C.
§ 1341, and all in violation of 18 U.S.C. § 371. Count Six charged
that he had, with the intent to defraud and mislead, misbranded
"ice cream" while held for sale in interstate commerce, in
violation of 21 U.S.C. §§ 331(k) and 333(a)(2).
In accordance with the agreement, Cintron-Fernandez
entered a guilty plea. A presentence report was prepared and given
to the parties, which calculated consumer loss to be $107,706.40.
Cintron-Fernandez filed an objection to the amount of consumer
loss. The district court referred the issue to Magistrate Judge
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Gustavo A. Gelphi, who, after an evidentiary hearing, concluded
that $107,706.40 was an appropriate figure.
On November 13, 2002, the district court held a
sentencing hearing. As Cintron-Fernandez had violated two closely
related counts, the district court grouped the two counts into a
combined offense level. Applying the 1997 Sentencing Guidelines,1
the court determined that the Count One offenses were governed by
§ 2X1.1, which applies to conspiracies not covered by a specific
offense Guideline. Rather than providing its own offense level, §
2X1.1(a) states that courts should apply the base offense level
from the Guideline for the substantive offense. Accordingly, the
district court determined that both substantive offenses in Count
One were governed by § 2F1.1.2 The district court further
determined that the Count Two sentences were also governed by §
2F1.1.3
1
As both parties agree that the 1997 Sentencing Guidelines
apply here, we apply the 1997 Sentencing Guidelines and, therefore,
need not determine whether applying the Guidelines in effect when
Cintron-Fernandez was sentenced would violate the Ex Post Facto
Clause. U.S.S.G. § 1B1.11; United States v. Prezioso, 989 F.2d 52,
53-54 (1st Cir. 1993).
2
Section 2F.1.1 applies to violations of 18 U.S.C. § 1341.
Section 2N2.1 applies to violations of 21 U.S.C. 331(k), but §
2N2.1(b) requires courts to apply § 2F1.1 instead of § 2N2.1 if the
offense involved fraud. Here, Cintron-Fernandez pled guilty to
violating 18 U.S.C. § 331(k) "with intent to defraud or mislead,"
so § 2F1.1 applies.
3
Section 2N2.1 applies to 21 U.S.C. §§ 331 and 333(a)(2),
but, as mentioned, § 2N2.1(b) requires courts to apply § 2F1.1 to
offenses involving fraud.
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Based on § 2F1.1, the district court concluded that the
base offense level was six. Since § 2F1.1 provides for increases
in the offense level according to the amount of loss resulting from
a crime if those losses are above $2,000, the district court, using
the consumer loss figure of $107,706.40, increased Cintron-
Fernandez's total offense level six levels. U.S.S.G. § 2F1.1b(1).
Accordingly, it assessed Cintron-Fernandez's total guideline
sentence at twelve.4 The district court further determined that
Cintron-Fernandez had a criminal history category of I.
Applying this offense level and criminal history to the
sentencing table, the district court then determined that the
applicable guideline imprisonment range was from ten to sixteen
months (Zone C) with a fine range of $3,000 to $30,000 plus a term
of supervised release of at least two but not more than three
years. U.S.S.G. § 5A (Table). The district court imposed a fine
of $3,000 for each of the two counts and stated that appellee was
to be:
committed to the custody of the Bureau of
Prisons to be imprisoned for a term of five
months and pursuant to guideline [5C1.1(d)(2)]
the Court will substitute one day of home
confinement for one day of incarceration and
said term of imprisonment is to be served
concurrently as to counts one and six. In
other words, the Court, although it imposes a
4
Thereafter, the district court added two levels for
planning pursuant to § 2F1.1(b)(2)(A), but it later subtracted two
levels for acceptance of responsibility pursuant to § 3E1.1.
Accordingly, the total offense level remained at twelve.
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term of imprisonment of five months, which is
at the lower end of the guideline range of
ten, pursuant to guideline [5C1.1(e)(3)]
substitutes one day of home detention for one
day of imprisonment. Upon completion of said
term of five months he shall be placed on
supervisory release for a term of three years
as to each count to be served concurrently
under the following conditions . . . He shall
be placed in home detention and comply with
the conditions of the home confinement program
for a period of five months.
When asked for clarification of the sentence by the government's
counsel, the district court explained:
And that is a type of sentence that I impose
when I am in Zone C at 12. You are
correct . . . [5C1.1(d)(2)] provides that if
the Court must sentence the defendants to
imprisonment provided that at least one half
of the minimum term is satisfied by
imprisonment. I have imposed a term of
imprisonment of five months as to each count
concurrently then I move on to [5C1.1(e)(3)]
which states that, that is the schedule of
substitute punishment and I have substituted
one day of home detention for one day of
imprisonment so although he has been sentenced
to a term of imprisonment as to each count,
five months, it is half of the minimum of the
guideline, nevertheless the Court substitutes
one day of home confinement for one day of
imprisonment.
The government objected, without avail, that the substitution
provision of § 5C1.1(e) could not be used to override the
Guidelines' minimum sentence requirements.
On November 20, 2002, the district court entered the
announced sentence. The government filed a timely notice of
appeal. Several months later, on April 13, 2003, under the
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jurisdiction of the Probation Office of the United States District
Court for the District of Puerto Rico, Cintron-Fernandez began
serving the five months of home detention associated with his
three-year term of supervised release, wearing an electronic
monitoring device as required. On September 11, 2003, his home
detention ended, the electronic monitoring device was removed, and
Cintron-Fernandez proceeded with the balance of his three-year term
of supervised release.
II. ANALYSIS
A. Jurisdiction
On appeal, the government argues that the district court,
in imposing a total of ten months of home confinement in lieu of
incarceration, failed to comply with the requirements of § 5C1.1 of
the Sentencing Guidelines, which requires that at least one-half of
the minimum term of imprisonment, here ten months, be satisfied by
imprisonment rather than by home detention.5
5
There is no dispute that the applicable sentencing range
in this case was ten to sixteen months, that this sentence falls
within Zone C of the Sentencing Guidelines, and that § 5C1.1 of the
Sentencing Guidelines governs Cintron-Fernandez's sentence. As
discussed more fully later, the government argues that the district
court's sentence is illegal because it fails to satisfy the minimum
term required by § 5C1.1, which, it contends, requires that at
least half of a defendant's minimum term be satisfied by actual
imprisonment rather than home detention. As the applicable minimum
term is ten months, the government argues that Cintron-Fernandez's
sentence must include at least five months of actual imprisonment.
The district court's announced sentence here included two
components: first, an "imprisonment" component of five months to
be served under the aegis of the Bureau of Prisons which was,
however, reduced to home confinement (still, it appears, under the
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Cintron-Fernandez argues that we lack jurisdiction to
consider the government's appeal because the district court --
rather than issuing a final order sentencing Cintron-Fernandez to
home detention in lieu of imprisonment -- simply gave to the Bureau
of Prisons a non-binding and non-reviewable "recommendation" that
Cintron-Fernandez's ordered five months imprisonment be served at
home. United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002)
(per curiam) (mere recommendation not reviewable order), cert.
denied, 535 U.S. 1120 (2002). We see no merit to this argument, as
we find the sentencing order to have been both final and
reviewable.
It is clear from the wording of the judgment itself, as
well as the judge's oral comments, that the judge intended Cintron-
Fernandez's specified term of "imprisonment" to consist of five
months of home confinement in lieu of incarceration. This
substitution was not stated as a mere recommendation. Under the
heading "IMPRISONMENT," the written judgment provides,
The defendant is hereby committed to the
custody of the United States Bureau of Prisons
to be committed for a total term of five (5)
months as to each count, to be served
concurrently with each other, pursuant to
U.S.S.G. § 5C1.1(d)(2) the defendant will be
placed in home confinement in lieu of
Bureau to administer); and, second, an additional five months of
home confinement as a condition of three years of supervisory
release. The district court evidently believed these two periods
of home confinement measured up to the minimum ten months
Guidelines requirement.
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incarceration, one day of home confinement for
one day of incarceration pursuant to U.S.S.G.
§ 5C1.1(e)(1)(3).
The language is mandatory -- "the defendant will be placed in home
confinement in lieu of incarceration." Notably, the court did not
utilize a space in the sentencing form earmarked for
recommendations to the Bureau of Prisons. There was no check by
the box provided for the court to indicate it was making a
recommendation, nor was any purported recommendation written in the
relevant space.
The above is consistent with the district court's oral
directions during the sentencing hearing. In none of these did the
court suggest that the Bureau of Prisons could incarcerate Cintron-
Fernandez in one of its facilities in lieu of the directed home
confinement.
As the judge's sentencing directions were unambiguous and
unequivocal, the court's intentions were clear. See United States
v. Flynn, 49 F.3d 11, 13 (1st Cir. 1995) ("'The intent of the
sentencing court must guide any retrospective inquiry into the term
and nature of a sentence.'") (quoting United States v. Einspahr,
35 F.3d 505, 506 (10th Cir.), cert. denied, 513 U.S. 1009 (1994)).
Rather than a "recommendation," the district court imposed a
sentence of five months home detention in lieu of imprisonment
followed by three years of supervised release, five months of which
were also to be served in home detention, together with an
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assessment and fine. Cf. United States v. Serafini, 233 F.3d 758,
778 (3d Cir. 2000) (concluding that order was non-reviewable
recommendation which stated, "The Court recommends that the Bureau
of Prisons designate the Catholic Social Services of Lackawanna
County Residential Program, Scranton, Pennsylvania, as the place
for service of this sentence,") (emphasis added).
Cintron-Fernandez argues that since the court placed him
in the Bureau of Prisons' custody, any statement by the court as to
his place of confinement could only be read as an implicit
recommendation because the Bureau of Prisons alone has the power to
designate the place of imprisonment. See 18 U.S.C. § 3621(b)
(stating, "The Bureau of Prisons shall designate the place of the
prisoner's imprisonment."). But the fact that the district court
may have exceeded its own authority in ordering the Bureau to
substitute home confinement does not turn the district court's
order into a non-reviewable recommendation. The Bureau of Prisons
apparently did not take Cintron-Fernandez into its custody at all
but rather elected to do nothing pending this appeal. Two days
after the sentence was entered, the Probation Office conducted an
initial interview with Cintron-Fernandez. It then waited for
approximately five months, perhaps out of deference to the Bureau
of Prisons should the Bureau have wished to take Cintron-Fernandez
into its custody. During this period, Cintron-Fernandez telephoned
the Probation Office each month. Finally, the Probation Office
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installed, in April, a home monitoring unit in Cintron-Fernandez's
home, monitored him for five months, and served as his primary
contact throughout this period of home detention. This five-month
term of home detention apparently fulfilled the second portion of
the district court's order imposing home detention as a condition
of supervised release. Cintron-Fernandez appears never to have
served the earlier term of home detention assigned under the label
of "IMPRISONMENT" to the jurisdiction of the Bureau of Prisons.
See supra at p. 8, n.5. There is, moreover, no indication that the
Bureau of Prisons ever undertook to make a choice of its own
regarding the character of Cintron-Fernandez's confinement.
According to 18 U.S.C. § 3621(b), the Bureau is supposed to choose
a "penal or correctional facility" and determine that the facility
meets enumerated minimum standards of health and habitability.6
Rather Cintron-Fernandez was simply left to serve a single five-
month term of home confinement as a condition of supervised release
under the aegis of the Probation Office.
We conclude that while the district court's sentencing
order was in fact erroneous as hereinafter explained, it was in no
6
For present purposes, we need not reach the issue of
whether Cintron-Fernandez's home could ever qualify as a "penal or
correctional facility" under 18 U.S.C. § 3621(b). We note that
home detention is mentioned in § 5C1.1 of the Sentencing Guidelines
as a possible condition of supervised release, and, to our
knowledge, is nowhere statutorily described as a form of
imprisonment entrusted to the Bureau of Prisons.
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way a mere recommendation, and is both final and reviewable on
appeal.
B. The Legality of the Sentence
The government argues that the district court's sentence
is illegal because it fails to satisfy the minimum term required by
§ 5C1.1 of the Sentencing Guidelines. We agree. We review de novo
the district court's legal interpretations of the Sentencing
Guidelines. United States v. Thiongo, 344 F.3d 55, 62 (1st Cir.
2003).
Section 5C1.1 states as follows:
(d) If the applicable guideline range is in
Zone C of the Sentencing Table, the minimum
term may be satisfied by --
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a
term of supervised release with a condition
that substitutes community confinement or home
detention according to the schedule in
subsection (e), provided that at least one-
half of the minimum term is satisfied by
imprisonment.
As Cintron-Fernandez's sentence is within Zone C, § 5C1.1(d)
applies. Accordingly, the minimum term of his sentence -- ten
months -- can be satisfied in two ways. First, a sentence of ten
months imprisonment would satisfy the minimum term. U.S.S.G. §
5C1.1(d)(1). Secondly, a sentence that substitutes for
imprisonment home detention according to the substitution schedule
of § 5C1.1(e), provided that at least one-half of the minimum term
is satisfied by imprisonment, would satisfy the minimum term.
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U.S.S.G. § 5C1.1(d)(2). Section 5C1.1(e) allows one day of home
detention or community confinement to be credited for one day of
imprisonment. Thus, if the court wished to impose the most lenient
legal minimum sentence against Cintron-Fernandez, it could have
sentenced him to five months imprisonment together with five months
of home detention or community confinement. U.S.S.G. §§
5C1.1(d)(2) & (e). Cintron-Fernandez's sentence must include at
least five months of imprisonment in order to satisfy the minimum
term.
Here the court stated that it committed Cintron-Fernandez
"to the custody of the Bureau of Prisons to be imprisoned for a
term of five months." But immediately thereafter the court
substituted five months of home detention in lieu of incarceration.
It then added three years of supervised release, five months of
which would also be served in home detention. Such a sentence
fails to meet the guideline requirement that "at least one half of
the minimum term [here ten months] is satisfied by imprisonment."
U.S.S.G. §§ 5C.1.1(d) & (e). Rather, it provides for ten months of
home detention with no "imprisonment" at all.
Cintron-Fernandez argues that the Guideline requirement
that at least half of the minimum term be "satisfied by
imprisonment" allows the "imprisonment" portion making up the half
term to itself be also home detention. Under this view,
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"imprisonment" in § 5C1.1 can mean not only time served in prison
but time served in home detention or community confinement.
Cintron-Fernandez's interpretation is without merit. It
is clear from both the text and commentary of § 5C1.1 that, in the
context of § 5C1.1,7 the minimum half term of "imprisonment" cannot
be satisfied by home detention or by community confinement.
According to §§ 5C1.1(d) & (e), home detention and community
confinement are considered as "Substitute Punishments" for
imprisonment, not merely different forms of imprisonment itself.
See also United States v. Delloiacono, 900 F.2d 481, 484 n.7 (1st
Cir. 1991) (stating "Since November 1, 1989, 'home detention,'
which also requires confinement, has been an authorized substitute
for a term of imprisonment.").
Section 5C1.1's commentary states "at least one half of
the minimum term specified in the guideline range must be satisfied
by imprisonment, and the remainder of the minimum term specified in
the guideline range must be satisfied by community confinement or
home detention." This explanation would be meaningless if
7
Our interpretation of imprisonment does not necessarily
apply to provisions other than § 5C1.1. The commentary to § 1B1.1,
which governs general application of the Guidelines, states,
"Definitions of terms also may appear in other sections. Such
definitions are not designed for general applicability; therefore,
their applicability to sections other than those expressly
referenced must be determined on a case by case basis." See also
United States v. Rasco, 963 F.2d 132, 137 (6th Cir. 1992) (stating
that the Guidelines caution against attempting to achieve
definitional coherence across numerous provisions).
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imprisonment meant the very same thing as home detention. See
United States v. Reccko, 151 F.3d 29, 32 (1st Cir. 1998) (stating
Guideline commentary is binding unless it violates federal law, is
inconsistent with Guidelines, or is based on plainly erroneous
reading of Guideline provision). That the two terms mean different
things is also shown by the example given in the commentary "that
satisfies the minimum term of imprisonment required by the
guideline range." U.S.S.G. § 5C1.1, comment. (n.4). The example
specifies that "where the guideline range is 8-14 months, a
sentence of four months imprisonment followed by a term of
supervised release with a condition requiring four months community
confinement or home detention would satisfy the minimum term of
imprisonment required by the guideline range." Id.
Cintron-Fernandez's proposed interpretation is also at
odds with the case law. See, e.g., Serafini, 233 F.3d at 778(stating community confinement cannot constitute imprisonment for
purposes of fulfilling the requirement that one-half of a split
sentence be satisfied by imprisonment under § 5C1.1); United States
v. Adler, 52 F.3d 20, 21 (2d Cir. 1995) (stating, "We agree with
the government that the district court's interpretation of Sections
5C2.1(d) and (e) is erroneous. 'Imprisonment' and 'community
confinement' are not synonyms . . . Moreover, as the Seventh and
Ninth Circuits have already concluded, Section 5C1.1(d), the almost
identically-worded successor to Section 5C2.1(d), clearly makes a
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distinction between imprisonment and community confinement.")
(citations omitted); United States v. Jalili, 925 F.2d 889, 892
(6th Cir. 1991) (stating, "we read Guideline § 5C1.1 . . . to mean
that community confinement may be included as a condition during
the term of supervised release."). We decline, therefore, to adopt
Cintron-Fernandez's interpretation of § 5C1.1.
It follows that the district court's sentence was
erroneous insofar as it failed to require at least five months of
imprisonment together with the five months of home detention that
it imposed as a condition of the three year term of supervised
release.
We reverse the judgment of the district court and remand
the case for resentencing in accordance with the Sentencing
Guidelines as herein interpreted and resolution of any related
issues.
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