United States v. Tavano

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1492

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES TAVANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Kimberly Homan, with whom Sheketoff & Homan was on brief,

for appellant.
Brien T. O'Connor, Assistant United States Attorney, with

whom A. John Pappalardo, United States Attorney, was on brief,

for appellee.

December 29, 1993

SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.

clarify a sentencing court's obligations in resolving evidentiary

disputes over drug quantity. Because we understand the court

below to have fashioned a per se rule giving controlling effect

to trial testimony, come what may, and because the court, in

fidelity to its self-hewn rule, did not meaningfully consider

conflicting evidence proffered by the defense, we vacate

appellant's sentence and remand for resentencing.

I. BACKGROUND

We bifurcate our account of what transpired below,

first elucidating the sequence of relevant events, and then

placing an interpretive gloss on those events.

A. The Sequence of Events.

A jury found defendant-appellant James Tavano guilty of

conspiring to possess cocaine with intent to distribute in

violation of 21 U.S.C. 846 (1988). Dissatisfied with the

outcome, appellant engaged new counsel. The probation officer

proceeded to compile the presentence investigation report (PSI

Report).

On February 11, 1993, the PSI Report emerged. It

adopted the prosecution's version of the crime, concluding that

appellant's relevant conduct encompassed between five and fifteen

kilograms of cocaine. Appellant's new lawyer objected to this

conclusion and, on March 15, 1993, sent a letter to the probation

officer spelling out discrepant representations in the grand jury

2

testimony concerning the size and frequency of certain

transactions.1 The attorney argued that the proffered evidence

cast the trial testimony into disrepute and, moreover, giving the

proffered evidence its due, appellant could not be held

responsible for more than three and one-half kilograms of

cocaine.2 The prosecutor promptly fired off a detailed rebuttal

letter under date of April 9, 1993. The probation officer, in

turn, attached a brief addendum to the PSI Report, stating:

After review of the materials submitted by
both the defense and the government, the
probation office feels that the calculations
originally submitted in the [PSI] Report are
correct and accurately reflect the amount of
cocaine for which the defendant can be held
accountable. The report is unchanged.

The district court convened a disposition hearing one

week later. Here follows, at length, the crucial exchange

between defense counsel and the judge:

COUNSEL: I'd like to say that I think
perhaps the thing to do in this case is not
to sentence, but perhaps take some time and
have one of your clerks maybe go through [my
March 15] submission.

JUDGE: No. No. I don't want to do that.

1By and large, this testimony originated from the same
sources, and referred to the same transactions, as the trial
testimony on which the probation officer and the prosecution
relied.

2The prize at stake in the battle over drug quantity is no
mere bagatelle. If five or more kilograms of cocaine are
properly attributable to Tavano, he is subject to a mandatory
minimum prison term of ten years, see 21 U.S.C.

841(b)(1)(A)(ii), as opposed to a mandatory minimum sentence of
five years if his alternative calculation is credited, see 21

U.S.C. 841(b)(1)(B)(ii). Tavano's base offense level and
guideline sentencing range are similarly affected.

3

It is not the kind of thing I would do.

I have just read, I think carefully, the
government's statement, which is helpful in
refreshing my recollection as to what
happened at the trial. You weren't here at
the trial, although you did read the
transcript, and I think what [the prosecutor]
says is accurate.

COUNSEL: Your Honor, it may be accurate
but

JUDGE: I don't think that I can go beyond
that. In other words, I think what your
point is, is that if I consider the grand
jury testimony, if I consider prior
inconsistent statements, I can come out a
different way, but I don't think that is what
I do.

It seems people come to court and they
testify. This is the dough issue, so to
speak, as you well know, and it is the
evidence that is presented at trial that
controls; and, even in the most conservative
efforts to try to make sure there is no
double charging against your client, he comes
out well above the amount that is necessary.

COUNSEL: I don't think that is true.

JUDGE: I am not saying I am right. I hope
I am right.

COUNSEL: . . . I say that you have a right
to look at both of these testimonies and make
the decision as to what the weight was.

* * *

JUDGE: . . . You didn't try the case, and
I didn't try the case. I presided, and you
were somewhere else. But I do think that
what should control is the evidence that is
presented at trial. That is where everything
gets shaken down.

I think that [the prosecutor's]
statement of what took place at trial is
reasonably presented in this April 9, 1993
submission . . .; and for purposes of the

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record, I will adopt his statement as my
findings. If I have made a mistake, then
that gives you a very clear shot on appeal.
That is what I am trying to do.

Following this exchange, the court selected a guideline

sentencing range on the basis of its finding that appellant

handled between five and fifteen kilograms of cocaine, and

sentenced appellant to a prison term of 121 months (the nadir of

the chosen range), capped by five years of supervised release.

On the order of judgment form, the court indicated its adoption

of the findings suggested in the PSI Report. This appeal ensued.

B. Interpreting the Sequence of Events.

Before appellate review can proceed, it is necessary to

clarify exactly what the district judge did and exactly what he

did not do. We are guided in this endeavor by the record a

record that flavors the judge's words and, concomitantly, offers

insights into his thinking.

Appellant's principal complaint on appeal is that the

district court enunciated an ironclad rule holding that, where

witnesses' trial testimony and their other statements on the

issue of drug quantity conflict, the former necessarily

controls.3 We think this is an accurate assessment of the

district court's position. For one thing, the judge himself

repeatedly stated as much. He said, for example: "I don't think

that I can go beyond [the evidence at trial]. . . . I don't

think that [considering inconsistent statements made prior to

3Appellant also attacks the adequacy of the district court's
findings. That attack fails. See infra Part II(B).

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trial] is what I do. . . . [I]t is the evidence that is

presented at trial that controls. . . . [W]hat should control

is the evidence that is presented at trial." These are

categorical pronouncements reflecting careful thought, not

statements in any way qualified or specially tailored to the

facts of the case.4 While some individual phrases, taken in

isolation, may be either ambiguous or subject to benign

explanation, the cumulative import of these statements, read in

context, is unmistakable.

For another thing, the judge's actions speak as loudly

as his words and they speak to the same end. Insofar as the

record reflects, the judge never read or, at least, never

analyzed, the defense's submission, presumably because he

regarded it as irrelevant. In contrast, the judge read the

government's submission on the bench and credited it because it

jibed with his recollection of the trial testimony. Of critical

importance, the judge did not act as if he were making a case-

specific ruling: he neither compared the arithmetical soundness

of the competing drug quantity calculations nor made

particularized credibility determinations.

Third, the district court's formal findings are of a

piece with our reading of the sentencing transcript. The court

eschewed any detailed, independent findings, but, rather, made

4This is not a situation involving a simple slip of the
tongue or an "awkward locution." Lenn v. Portland Sch. Comm.,

998 F.2d 1083, 1088 (1st Cir. 1993) (collecting cases). Rather,
this case features a studied course of action, thoughtfully
undertaken and repeatedly articulated.

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what appear to be implicit findings. On the order of judgment

form, the court adopted the recommended findings contained in the

PSI Report. These findings included, of course, the proposed

findings presented in the government's April 9 letter a missive

premised solely on trial testimony, summarily approved by the

probation officer, and eventually appended to the order of

judgment form.

Fourth, the lack of comparative analysis and detailed

findings gains added significance when it is viewed in concert

with the judge's avowed uncertainty about the propriety of his

actions. If the court were making a fact-specific comparison

based on demeanor evidence a humdrum exercise rather than

pronouncing a neoteric rule of law, there would have been little

point in "trying" to set the stage to give Tavano "a very clear

shot on appeal."

We are obliged to review a trial court's actions as

they are made manifest in the record, cf. Advance Fin. Corp. v.

Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir. 1984)

(acknowledging that "the district court speaks to [the court of

appeals] primarily through its decrees"); and, while word

processing is incapable of fully reproducing the thickness of

reality, we are confident that, here, the district court

formulated a per se rule declaring trial testimony determinative

of drug quantity, to the exclusion of all other evidence bearing

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upon the same set of transactions.5 We proceed on that

understanding.

II. DISCUSSION

Having satisfied ourselves as to the import of the

record, we summarize the legal principles that allow us to test

the soundness of the lower court's rationale and, accordingly,

govern the disposition of this appeal. Next, we set some allied

concerns to rest. At journey's end, we apply the discerned law

in light of what transpired below.

A. Applicable Legal Principles.

A number of other tribunals have had occasion to

emphasize the obligation that devolves upon a sentencing court

presented with conflicting drug quantity evidence to review that

evidence and exercise independent judgment. See, e.g., United

States v. Goines, 988 F.2d 750, 775 (7th Cir.) (admonishing

courts to "resist the urge to accept summarily the quantity

alleged by the government"), cert. denied, 114 S. Ct. 241 (1993);

United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993)

("When the amount of drugs for which a defendant is to be held

responsible is disputed, the district court must make an

independent resolution of the factual issue at sentencing.");

5Even if there were room for an objectively reasonable
division of opinion on what the judge intended and we see no
such room here it is apparent that the ends of justice are best
served by giving appellant the benefit of any doubt. Cf., e.g.,

Bifulco v. United States, 447 U.S. 381, 387 (1980) (discussing

applicability of rule of lenity to ambiguous criminal statutes).

8

United States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992)

(explaining that a "sentencing court must carefully review the

government's [drug quantity] submissions to ensure that its

estimates are proven by a preponderance of the evidence"). In a

case that bears haunting similarities to the case at bar, the

Sixth Circuit vacated a defendant's sentence because it appeared

possible that the district judge placed the jury's drug quantity

findings on a pedestal and treated them as controlling at

sentencing, without independent analysis of other relevant

evidence. See United States v. Prior, 941 F.2d 427, 430-31 (6th

Cir.), cert. denied, 112 S. Ct. 613 (1991). Such a per se rule,

Chief Judge Merritt wrote, would defile the principle that "the

sentencing judge must exercise independent judgment in

sentencing." Id. at 431.

We, too, recognize that the district court has a duty

to consider all relevant drug quantity evidence at sentencing,

even if that evidence is from the same sources as, and conflicts

with, evidence adduced at trial. In the final analysis, this

duty derives from the Due Process Clause, which guarantees every

defendant a "right to be sentenced upon information which is not

false or materially incorrect." United States v. Berzon, 941

F.2d 8, 18 (1st Cir. 1991); accord United States v. Curran, 926

F.2d 59, 61 (1st Cir. 1991). To give content to this right, a

court must take pains to base sentencing judgments upon reliable

and accurate information. See Berzon, 941 F.2d at 18; United

States v. Prescott, 920 F.2d 139, 143 (2d Cir. 1990). And to

9

assure itself that a piece of proof is sufficiently reliable, a

court must consider all the available evidence, including

conflicting evidence.

The Criminal Rules are designed to nourish the due

process right to be sentenced based on substantially accurate

information. See Curran, 926 F.2d at 61; United States v.

Gerante, 891 F.2d 364, 367 (1st Cir. 1989). Thus, a district

court confronted with an alleged error of fact in a presentence

report must make either "(i) a finding as to the allegation, or

(ii) a determination that no such finding is necessary because

the matter controverted will not be taken into account in

sentencing." Fed. R. Crim. P. 32(c)(3)(D); see also United

States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58 (1st Cir.

1991) (collecting cases). The federal sentencing guidelines

slant in the same direction and, to that extent, also nourish the

due process right:

When any factor important to the sentencing
determination is reasonably in dispute, the
parties shall be given an adequate
opportunity to present information to the
court regarding that factor. In resolving
any reasonable dispute concerning a factor
important to the sentencing determination,
the court may consider relevant information
without regard to its admissibility under the
rules of evidence applicable at trial,
provided that the information has sufficient
indicia of reliability to support its
probable accuracy.

U.S.S.G. 6A1.3 (Nov. 1992). In our estimation, this provision

not only requires sentencing courts to afford defendants a fair

opportunity to present information relevant to sentencing

10

(including information at variance with trial testimony), but

also requires courts to mull any information adduced.

The government asserts that section 6A1.3 cuts a

narrower swath. It notes that, in terms, the policy statement

mandates only presentation of conflicting evidence; the language

mentioning evaluation of such evidence ("may consider") is

permissive and, therefore, the government says, judicial

consideration of presented material is in the court's discretion.

We reject this now-you-see-it, now-you-don't prestidigitation,

for neither the government's hocus-pocus nor its crabbed reading

of section 6A1.3 make any real sense. Drawing an artificial

distinction between presentation and consideration much like

drawing a distinction between the opportunity to be heard and the

opportunity to be listened to reduces the guideline to

gibberish, stripping it of its essential meaning. We do not

think the Sentencing Commission, in drafting section 6A1.3, could

possibly have meant to give defendants such cold gruel,

pretending to confer a benefit, yet, simultaneously, withholding

the benefit's intrinsic value. Indeed, with this reality in

mind, we have already interpreted section 6A1.3 to "require the

sentencing court to make an independent determination regarding

the reliability of all proffered evidence." United States v.

Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990) (emphasis

supplied), cert. denied, 111 S. Ct. 2039 (1991).6

6Although we did not at the time justify this requirement
with specific reference to the text of section 6A1.3, we believe
that it may fairly be inferred, both as a gloss on the word

11

The duty to consider evidence conflicting with trial

testimony takes on special urgency in the drug quantity context.

Though sentencing judges may look to trial testimony when they

adjudicate factual disputes ancillary to sentencing,7 see, e.g.,

United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990), there

are at least two good reasons to be skeptical of total reliance

on trial testimony in this context. First, under the guidelines,

drug quantity is a factor of extraordinary importance to the

sentencing calculus. See United States v. Morillo, F.3d ,

(1st Cir. 1993) [No. 93-1388, slip op. at 12] (explaining

that "drug quantity profoundly affects sentence length," with the

result that "relatively small quantitative differences often have

a significant leveraging effect" in respect to sentence length);

United States v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990)

(describing drug quantity as "a key datum" in determining

sentences of drug traffickers). It is, therefore, imperative for

a sentencing court to shine a very bright light on possible

answers to the drug quantity inquiry. Second, drug quantity

testimony, even if subject to reasonable dispute, is not apt to

be challenged vigorously at trial, for defendants are

"adequate" (in the phrase "adequate opportunity to present") and
as the only policy consistent with the guideline's spirit. The
opportunity to present information could hardly be regarded as
"adequate" if the court retained the power to file the presented
information away, sight unseen, and continue blithely on its way.

7We refer here to the mine-run of cases; there are, of
course, special situations in which reliance on particular trial
testimony may be inappropriate. See, e.g., Berzon, 941 F.2d at

20.

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understandably wary of conceding culpability before the jury and

often prefer to pitch their case on bedrock issues of guilt or

innocence. See United States v. Valencia-Lucena, 988 F.2d 228,

232 (1st Cir. 1993); Zuleta-Alvarez, 922 F.2d at 36. Thus, drug

quantity, by its nature, is likely to be a "factor important to

the sentencing determination," and, even after trial, is likely

to remain "reasonably in dispute." U.S.S.G. 6A1.3. These are

precisely the circumstances under which a timely request to

consider conflicting evidence must be honored.

To sum up, we hold, consistent with the dictates of due

process, that both Fed. R. Crim. P. 32(c)(3)(D) and U.S.S.G.

6A1.3 require a sentencing court independently to consider

proffered information that is relevant to matters of consequence

in the sentencing determination. In cases where drug quantity

qualifies under this rubric, a reviewing court is obliged to

consider all available evidence having probative value, including

but not limited to witnesses' prior inconsistent statements and

other proof contradicting witnesses' trial testimony, and to pass

independent judgment thereon.

B. Allied Legal Principles.

In the interest of avoiding any future

misunderstandings, we wish to clarify three allied points.

First, a trial judge's duty to consider conflicting evidence

seasonably presented during the sentencing phase in no way

implies a duty of blind acceptance. When all is said and done, a

judge, after examining all the relevant evidence, may ordinarily

13

pick and choose. And in the process, the judge may decide,

because of its persuasive force in a particular case, to fall

back upon, and ultimately to credit, trial testimony.

Next, we summarily dismiss appellant's claim that

either the duty of independent consideration or, alternatively,

Rule 32, implies a duty of free-standing articulation. Explicit

findings, while often desirable, are not indispensable in

connection with drug quantity issues.8 As a general rule, a

trial court lawfully may make implicit findings with regard to

sentencing matters, incorporating by reference suitably detailed

suggestions limned in the PSI Report or advanced by a party. See

United States v. Savoie, 985 F.2d 612, 620 (1st Cir. 1993); Wells

Metal, 922 F.2d at 58. That practice is permissible in drug

cases as in other cases.9 See, e.g., United States v. Barnett,

989 F.2d 546, 551-52 & n.5 (1st Cir.), cert. denied, 114 S. Ct.

148 (1993); United States v. Cruz, 981 F.2d 613, 618-19 (1st Cir.

1992); Gerante, 891 F.2d at 367.

Finally, we do not mean to suggest that a court must

always resolve every controversy that touches upon the amount of

drugs involved in an offense, scheme, or course of conduct. It

is unnecessary to address a dispute over drug quantity if, and to

the extent that, adjudicating it will not alter the applicable

8We see nothing in our opinion in United States v. Hanono-

Surujun, 914 F.2d 15, 19 (1st Cir. 1990), much bruited by

appellant, that compels a different conclusion.

9On this basis, we reject appellant's argument that the
court below transgressed Rule 32 by the use of implicit findings
in respect to drug quantity.

14

offense level, influence the guideline sentencing range, or bring

a different mandatory minimum sentence into play.10 See, e.g.,

Bradley, 917 F.2d at 604.

C. The Bottom Line.

The principles we have discussed are dispositive of the

instant appeal. Although a sentencing court's factbound

determination of drug quantity is usually reviewable only for

clear error, see id. at 605, judgments concerning the applicable

rules of law are subject to plenary review. See Morillo,

F.3d at [slip op. at 14]; see also United States v. St. Cyr,

977 F.2d 698, 701 (1st Cir. 1992) (holding that, under the

guidelines, claimed mistakes of law are reviewed de novo). In

this case, we conclude that the lower court lapsed into error

when it formulated a per se rule and refused independently to

consider evidence at variance with trial testimony. Since we

cannot say with fair assurance that the mistake did not affect

the outcome, resentencing is required.

III. CONCLUSION

We need go no further. For the reasons stated, we hold

that the district court erred in failing independently to

10To illustrate, if the present controversy over drug
quantity boiled down to the difference between, say, six and nine
kilograms of cocaine, the court would not be obliged to resolve
it. Either way, the offense level would be the same, see

U.S.S.G. 2D1.1(c)(6) (Drug Quantity Table) (setting offense
level for offenses involving 5 or more, but less than 15,
kilograms of cocaine), the sentencing range would be the same,
cf. id., and the mandatory minimum sentence would be the same,

see 21 U.S.C. 841(b)(1)(A)(ii) (fixing obligatory minimum

sentence for offenses involving 5 or more kilograms of cocaine).

15

scrutinize proffered evidence conflicting with the trial

testimony anent drug quantity.11 Hence, we vacate appellant's

sentence and remand for a new sentencing hearing and for further

proceedings consistent with this opinion.

It is so ordered.

11We venture no opinion as to whether, after due
consideration, the disputed trial testimony should (or should
not) be credited in this instance. We similarly refrain from
commenting upon what drug quantity is most appropriately
attributable to appellant. Those matters are for the nisi prius

court.

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