United States v. Toribio-Almonte , 629 F. App'x 9 ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-2496
UNITED STATES OF AMERICA,
Appellee,
v.
BONIFACIO TORIBIO-ALMONTE, a/k/a CARLOS DE-LA-CRUZ-SANCHEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
George F. Gormley, with whom Stephen P. Super was on brief,
for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodriguez-Velez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.
October 23, 2015
STAHL, Circuit Judge. The defendant, Bonifacio Toribio-
Almonte, after having pled guilty to participating in a drug-
trafficking conspiracy, now appeals from his sentence. At
sentencing, the government claimed that the defendant was a leader
or organizer of the conspiracy--a claim for which the government
finds no support in the record and accordingly declines now to
defend. Because resolution of the government's claim appeared
central to the sentencing calculus, and yet because the record is
too unclear to engage in effective appellate review on this
question, we vacate the sentence and remand the action for
resentencing.
I. Facts & Background
We draw the facts from the uncontested presentence
report ("PSR") and the transcript of the sentencing hearing.
United States v. Gaffney-Kessell, 772 F.3d 97, 98 (1st Cir. 2014).
On April 12, 2012, a U.S. Customs and Border Protection
marine patrol aircraft detected a small boat approximately
seventeen nautical miles off the coast of Puerto Rico. The vessel,
later determined to be registered in the Dominican Republic, was
sailing in the direction of Dorado, Puerto Rico, with its lights
out and, as it turned out, carrying six people on board. As the
aircraft approached the vessel, several bales of what appeared to
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be contraband were thrown overboard. The boat was intercepted and
its passengers were arrested, including the defendant and five
other individuals, all Dominican citizens. Six of the jettisoned
bales were later recovered from the water and a field test yielded
positive results for the presence of cocaine and heroin.1 In
total, 146.5 kilograms of cocaine and 8.53 kilograms of heroin
were seized.
The defendant and the five others on board the vessel
were indicted on one count of conspiracy to import five kilograms
or more of cocaine and one kilogram or more of heroin into the
United States, 21 U.S.C. §§ 952(a), 960, 963, and one count of
conspiracy to possess and distribute five kilograms or more of
cocaine and one kilogram or more of heroin on board a vessel within
U.S. customs waters, 46 U.S.C. §§ 70503(a)(1), 70504(b)(1),
70506(a).2 The government initially offered the defendant a plea
agreement, wherein the government agreed to recommend a sentence
of 108 to 135 months, but the defendant rejected it, opting instead
to go to trial. However, on the morning that trial was scheduled
1
Subsequent chemical testing confirmed that the substances
were in fact cocaine and heroin.
2
The indictment also charged two of the codefendants with
attempting to reenter the United States without permission after
having been deported. 8 U.S.C. § 1326(a).
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to begin, the defendant entered a guilty plea, with no plea
agreement. The trial proceeded against four of his codefendants,
who were ultimately convicted, while the fifth also pled guilty.
The probation office calculated the defendant's base
offense level as 38, given the drug quantities at issue, and
calculated an overall adjusted offense level of 36 based on the
defendant's acceptance of responsibility. The defendant had no
criminal history points, placing him in criminal history category
I. A total offense level of 36 and a criminal history category of
I yielded a guidelines sentencing range of 188 to 235 months'
imprisonment. The counts carried a mandatory minimum sentence of
120 months.
In its sentencing memorandum, the government requested
a sentence of 235 months, at the high end of the guidelines range.
In support, the government submitted that "maritime drug
trafficking . . . has significantly increased over the past years"
and that Puerto Rico "has seen a dramatic increase in overall drug
use and consumption[.]" The government further stated, "[a]ny
potential argument that the defendant acted as a mere 'mule' who
now deserves a downward departure . . . directly snubs the
potential victims of the defendant's offense[.]"
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In his sentencing memorandum, the defendant requested
that the Court "not impose a strict Sentencing Guidelines
sentence[.]" Instead, the defendant requested a sentence below
the mandatory minimum or, "[i]n the alternative," the mandatory
minimum itself.3 At the sentencing hearing, defense counsel
provided some additional points of reference "for persuasion
purposes." Drawing the court's attention to "similar" cases
previously before the District of Puerto Rico, defense counsel
observed that conspiracy "leaders" received sentences of
approximately 188 months, whereas other participants received
lesser sentences, such as 97 months, 125 months, or the applicable
mandatory minimum. Defense counsel then asked the court to
consider the fact that the defendant was a "minor participant" in
fashioning its sentence. In response, the district court
acknowledged that the government's sentencing memorandum "assumes
that [the defendant] may be a mule[.]"
The prosecutor immediately disputed that the defendant
was a lesser participant, stating that the government believed,
based on the debriefing of a coconspirator, that the defendant was
3
The defendant's sentencing memorandum posits the statutory
minimum as 60 months rather than 120 months, a mistake brought to
the district court's attention by defense counsel at the outset of
the sentencing hearing.
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an organizer of the drug-trafficking scheme in question. "So that
being said and following in line with the cases that [defense
counsel] mentioned," the prosecutor argued, "it would behoove this
Court to sentence him within this guideline range."
As the hearing drew to a close, defense counsel pushed
back on the suggestion that the defendant held any kind of
leadership role. Without speaking directly to defense counsel's
argument, the district court moved directly to allocution. Noting,
inter alia, the defendant's status as a father, his lack of a
criminal record or history of substance abuse, and his past illegal
entry into the United States, the court imposed a sentence of 188
months' imprisonment.4 The court did not indicate whether the
defendant's request for a below-guidelines sentence had been
entertained as a motion, or denied as such, and the court made no
findings concerning the only fact debated at the hearing; i.e.,
defendant's alleged role as an organizer of the conspiracy. The
court only noted that it had "taken into consideration the
arguments of counsel[.]"
4
Over a year after the sentencing hearing, the district court
granted the defendant's motion to reduce his sentence, based on
the U.S. Sentencing Commission's change to the drug quantity table,
made retroactive pursuant to 28 U.S.C. § 994(u). The court reduced
the defendant's sentence from 188 to 151 months.
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II. Analysis
On appeal, the defendant attacks the reasonableness of
his sentence. Such a challenge "involves a procedural as well as
a substantive inquiry." United States v. Politano, 522 F.3d 69,
72 (1st Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51
(2007)). "We first determine whether the district court made any
procedural errors" such as "selecting a sentence based on clearly
erroneous facts[.]" Id. (quoting Gall, 552 U.S. at 51). In the
absence of procedural error, "we next turn to the substantive
reasonableness of the sentence actually imposed[.]" Id. "We
review preserved objections to both the procedural and substantive
reasonableness of a sentence for abuse of discretion." United
States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012).
Where a claim has not been preserved, our review is for plain
error. Id. This entails four showings: "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." Id. (quoting United States v. Duarte,
246 F.3d 56, 60 (1st Cir. 2001)).
The defendant lodges both procedural and substantive
complaints, but we need only address one: sentencing based on
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erroneous facts. The defendant claims that the district court
erred by allegedly relying upon the government's unsupported
assertion that the defendant was an organizer of the conspiracy,
which the defendant directly and explicitly challenged when it was
raised for the first time at the sentencing hearing.
On appeal, the government has made no attempt to defend
its assertion that the defendant was a "leader" or "organizer."
In fact, at oral argument, the government pointed to no evidence
on the record that the defendant was an organizer and, indeed,
conceded that there was no such evidence. In any event, the record
tends to belie the government's abandoned claims of leadership.
First, the offense conduct articulated in the PSR, which did not
attribute to the defendant an aggravating-role enhancement,
describes all defendants as having "equal roles in the conspiracy."
The government did not file an objection to the PSR or seek a
sentencing enhancement. Second, the government's sentencing
memorandum anticipated that the defendant would claim a mere bit
part in the affair. Rather than countering that the defendant
played a major role, the government protested that any downward
variance on this basis would snub the potential victims of the
offense. As the district court noted, this position assumes that
the defendant was, in fact, a minor participant. Finally, at the
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trial of the defendant's confederates, counsel for one of the
defendants told the jury that the conspirators who pled guilty,
rather than those on trial, were the ones "responsible" for the
scheme. The government objected to this claim for referring to
facts not in evidence. The court sustained the objection. The
government may find it convenient for the pleading defendants to
be "responsible" for the conspiracy now that their codefendants'
trial has closed, but what is sauce for the goose is sauce for the
gander. The record cannot abide the government's volte-face.
Even if we assume that the defendant did not adequately
preserve his objection,5 however, "it is impossible to determine,
based on this record, whether a clear and obvious error (or for
that matter, any error at all) occurred." United States v. Mendez,
___ F.3d ___, No. 14-1566, 2015 WL 5306457, at *4 (1st Cir. 2015).
From start to finish, the sentencing hearing centered almost
5
It is typically the defendant's responsibility to police
the adequacy of the record by objecting to any deficiencies in the
district court's explanations. See United States v. Gilman, 478
F.3d 440, 447 (1st Cir. 2007). But on the facts of this case,
where defense counsel engaged in a highly consequential factual
dispute before the sentencing court, and where the government's
position in that dispute had little to no support in the record,
and where the district court failed to send any signal as to how
its resolution of the critical question played into its sentencing
rationale, we cannot justly lay sole responsibility for the
record's ambiguity at the feet of the defendant.
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entirely on the question of whether the defendant was a leader or
organizer as opposed to a mere minor participant in the conspiracy.
Yet, the record is silent as to how the court resolved that
question.
"While we have on occasion gone to significant lengths
in inferring the reasoning behind, and thus in affirming, some
less-than-explicit explanations by district courts, there are
limits. If we are in fact wholly unable to discern the court's
rationale, appellate review is unworkable and a remand is
necessary." Id. (internal citations and quotation marks omitted).
Such is the case here.
On the central question presented at the sentencing
hearing, the court merely observed in closing that it had "taken
into consideration the arguments of counsel to sentence him to the
minimum of the guideline range[.]" But the sentence itself is one
that neither party clearly requested, and it therefore offers us
no insight into whether the court did or did not find the
defendant's role to be minor or major. Perhaps the court
understood the defendant to have requested a sentence at the low
end of the guidelines range rather than a sentence below the
guidelines range, but, here too, inferences from the record point
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in both directions and frustrate our capacity to engage in a
meaningful analysis.
Although the law "does not require a district court to
be precise to the point of pedantry," United States v. Fernández–
Cabrera, 625 F.3d 48, 53 (1st Cir. 2010), we must be able to
ascertain the court's findings to engage in effective appellate
review. See Mendez, 2015 WL 5306457, at *5. "We cannot do that
here and, therefore, are unable to effectively consider even the
first prong of plain error review." Id.III. Conclusion
The Court's holding today is an exceedingly narrow one,
confined to the unique and opaque record before us. Where the
sentencing hearing is largely devoted to a single, highly material
issue debated by the parties, and where resolution of that issue
in favor of the prosecution would be clear error, we need to know
how the court resolved the question in exercising its broad
sentencing discretion in order that we may perform our appellate
function of determining whether the sentencing was procedurally
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correct. For the reasons stated above, the defendant's sentence
is VACATED and the action is REMANDED for re-sentencing.6
6
We make no comment on the appropriate sentence that may
follow a properly conducted sentencing hearing. In addition, we
need not address the defendant's contention that the district court
committed procedural error by failing to apply the "safety valve"
provision of the sentencing guidelines that permits relief from
otherwise mandatory minimum sentences if certain criteria are met.
See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. We recognize that the
defendant's sentencing memorandum appears to light upon the
elements of a safety valve reduction, however ungracefully. A
defendant does not need to incant the magic words "safety valve"
in order to invoke its protections, but the defendant also bears
the burden of raising the issue with sufficient clarity. United
States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000) ("The
defendant bears the burden of showing his entitlement to a safety
valve reduction."). We express no opinion as to whether that
threshold was met here or whether the defendant qualifies under
the relevant provision. The district court may evaluate the
defendant's qualifications in the first instance upon remand.
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