United States v. Camilo

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1565

UNITED STATES,

Appellee,

v.

BLAS CAMILO,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr and Lynch, Circuit Judges.

Michael J. Iacopino, with whom Timothy I. Robinson and

Brennan, Caron, Lenehan & Iacopino were on brief for appellant.

Jean B. Weld, Assistant United States Attorney, with whom

Paul M. Gagnon, United States Attorney, was on brief for

appellee.

December 18, 1995

TORRUELLA, Chief Judge. Defendant-appellant Blas
TORRUELLA, Chief Judge.

Camilo ("Camilo") appeals his sentence of 96 months given at his

resentencing hearing of May 2, 1995. In United States v. Camilo,

30 F.3d 126 (1st Cir. 1994), this court affirmed his convictions

for violations of 21 U.S.C. 841(a) and 846 pursuant to a

final judgment entered on January 3, 1994 by the district court,

and remanded for the resentencing that is the origin of this

appeal. For the reasons set forth below, we affirm.

BACKGROUND
BACKGROUND

The facts, which are derived from the presentence

investigation reports as well as the oral and documentary

evidence introduced at the sentencing and resentencing hearings,

are as follows.

Camilo was indicted with two co-defendants on July 2,

1993. He was charged in count one with conspiracy to distribute

cocaine base (or "crack") in violation of 21 U.S.C. 846, and in

counts two and three with distributing cocaine base on April 22,

1993 and May 12, 1993, in violation of 21 U.S.C. 841(a)(1).1

1 Section 841(a)(1) provides that:

Except as authorized by this subchapter,
it shall be unlawful for any person
knowingly or intentionally--(1) to . . .
distribute . . . or possess with intent
to . . . distribute . . . a controlled
substance . . . .

Section 846 provides that:

Any person who attempts or conspires to
commit any offense defined in this
subchapter [including 841(a)(1)] shall
be subject to the same penalties as those

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On October 4, 1993, Camilo pled guilty to count three pursuant to

a written plea agreement, and counts one and two were dismissed.

For count three, Camilo was sentenced on January 3, 1994 to ten

years of imprisonment and five years of supervised release.

Camilo appealed this sentence, and on August 8, 1994, the Court

remanded this case for resentencing pursuant to the agreement of

both parties at oral argument, based primarily on a change in the

sentencing recommendation policy of the United States Probation

Office pertaining to 841(b) penalties. See 21 U.S.C. 841(b)

(specifying penalties for 21 U.S.C. 841(a) violations). In the

wake of United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir.

1993), the Probation Office accordingly recommended that the

mandatory minimum sentences under 21 U.S.C. 841(b)(1) be based

only on the drug quantities involved in the offenses of

conviction.

At Camilo's resentencing hearing on May 2, 1995, the

district court assessed Camilo with two additional criminal

history points because, at the time that he committed the instant

offense, he had an outstanding Massachusetts warrant for a

probation violation. Camilo challenges this decision as error.

Additionally, Camilo argues that because cocaine powder and crack

are scientifically identical, the United States Sentencing

Guidelines' ("the Guidelines'") distinction between the two forms

prescribed for the offense, the
commission of which was the object of the
attempt or conspiracy.

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of cocaine produces statutory ambiguity. Therefore, argues

Camilo, under the rule of lenity,2 he should receive the lighter

penalty for cocaine powder rather than the heavier penalty for

crack, the substance which he was in fact convicted of

distributing.

DISCUSSION
DISCUSSION

A. The Criminal History Computation
A. The Criminal History Computation

We review a district court's legal interpretation of

the Guidelines de novo, United States v. Fontana, 50 F.3d 86, 87

(1st Cir. 1995); United States v. Ovalle-M rquez, 36 F.3d 212,

221 (1st Cir. 1994), cert. denied, 115 S. Ct. 1322, 131 L.Ed.2d

202 (1995), and its fact-bound determinations of defendant's

actions with respect to the offense for clear error. Fontana, 50

F.3d at 87; Ovalle-M rquez, 36 F.3d at 225. Furthermore, the

government carries the burden of showing the facts necessary to

justify additional criminal history points. United States v.

Roberts, 39 F.3d 10, 13 (1st Cir. 1994).

The Guidelines specify that, in determining the

Criminal History Category, the sentencing court shall add two

points to a defendant's criminal history category "if the

defendant committed the instant offense while under any criminal

justice sentence, including probation." United States Sentencing

2 The rule of lenity mandates the resolution of ambiguities in a
criminal statute favorably to the defendant. United States v.

Gibbens, 25 F.3d 28, 35 (1st Cir. 1994); United States v. O'Neil,

11 F.3d 292, 301 n.10 (1st Cir. 1993). The rule is a background
principle which casts the decisive vote when all else fails to
bring sufficient lucidity to the meaning of a penal statute.
Gibbens, 25 F.3d at 35.

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Commission, Guidelines Manual, 4A1.1(d) (1994). Section

4A1.2(m) defines the effect under 4A1.1(d) of an outstanding

warrant for a probation violation as follows:

For the purposes of 4A1.1(d), a
defendant who commits the instant offense
while a violation warrant from a prior
sentence is outstanding (e.g., a

probation, parole, or supervised release
violation warrant) shall be deemed to be

under a criminal justice sentence for the

purposes of this provision if that
sentence is otherwise countable, even if
that sentence would have expired absent
such a warrant.

4A1.2(m) (emphasis added); see also 4A1.1(d), comment. (n.4)

(explaining the effect of a violation warrant "[f]or the purposes

of [ 4A1.1(d)]" in language almost identical to the above block

quote).

We conclude, and Camilo does not dispute, that the

sentence of two years' probation which the evidence shows was

imposed on him on June 28, 1989 was "otherwise countable" under

4A1.1(d).3 Section 4A1.1(d) specifically includes "probation"

as a "criminal justice sentence" triggering the additional two

points. Furthermore, 4A1.2(m) clearly indicates that, for

4A1.1(d) purposes, an outstanding violation warrant is to be

considered the equivalent of the criminal justice sentence under

3 The words "otherwise countable" in 4A1.2(m) appear to refer
exclusively to the fact that certain enumerated offenses are
excluded for the purposes of 4A1.1(d). These exceptions,
explained in 4A1.2(c)-(j), do not apply in the instant case.
See, e.g., 4A1.2(c) (entitled "Sentences Counted and

Excluded"); 4A1.2(i) ("Sentences resulting from tribal court
convictions are not counted"); 4A1.2(j) ("Sentences for
expunged convictions are not counted").

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which it issued, even if that sentence would otherwise have

expired absent such warrant.

Given the clarity of the relevant Guidelines, the issue

would seem to hinge simply on whether an outstanding warrant

existed, and the evidence supports the district court's finding

that it did. Sufficient evidence supports the district court's

conclusion that the outstanding warrant in question was issued on

May 2, 1991, almost two months before Camilo's probation would

have expired. However, Camilo argues that the required inquiry

is not so simple. First, citing precedents from other circuits,

he contends that the government must show that, under the law of

the prior sentence's origin (here, Massachusetts), the warrant is

not stale and the issuing court retains jurisdiction to revoke

the defendant's probation. See United States v. Lee, 941 F.2d

571, 572-73 (7th Cir. 1991) (discussing Missouri law); United

States v. Baty, 931 F.2d 8, 10-11 (5th Cir. 1991) (discussing

Texas law). Second, Camilo asserts that, under Massachusetts

law, the outstanding warrant was invalid for the purpose of

additional criminal history points, because the government failed

to present evidence that it made reasonable attempts to execute

the warrant.

We reject Camilo's proposition, which he contends to be

the law in the Fifth and Seventh Circuits, that the Guidelines'

otherwise unambiguous direction is necessarily qualified by an

additional showing under state law. We decline to follow the

cited cases because both cases were decided before the effective

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date of Amendment 381 to the Guidelines, November 1, 1991, which

added both 4A1.2(m), discussed above, and 4A1.1, comment.

(n.4).4 See USSG App. C, pp. 261-62, 264 (Nov. 1994); Lee, 941

F.2d at 571 (decided August 26, 1991); Baty, 931 F.2d at 8

(decided April 26, 1991). Not surprisingly, neither case

mentions either 4A1.2(m) or 4A1.1, comment. (n.4), which were

to become effective on November 1 of 1991, the year in which both

cases were decided. Lee, 941 F.2d at 571; Baty, 931 F.2d at 8.

Instead, we follow the reasoning of a case not cited by

either party, United States v. Renfrew, 957 F.2d 525 (8th Cir.

1992). In that case, the Eighth Circuit stated that whether a

defendant was under a criminal justice offense was ultimately a

matter of federal law:

Although we agree that state law is
relevant to the question before us, our
ultimate task is to determine whether
[the defendant] was 'under' a criminal
justice sentence for purposes of
4A1.1(d). That is a question of federal
law.

Id. at 526-27 (affirming the addition of two points to

defendant's criminal history category based on either or both

Minnesota law and 4A1.1(d), comment. (n.4)). In Renfrew, the

Eighth Circuit determined that regardless of whether it focused

4 We note in passing that Shepard's Citation Service indicates
that Baty has only been cited by Lee, and Lee in turn has been

cited by only one other case, United States v. Davis, 797 F.

Supp. 672, 675-76 (N.D. Ind. 1992) (undertaking Lee-directed

state law inquiry into outstanding warrant and finding under that
rubric that the instant defendant's outstanding warrant sufficed
under 4A1.1(d) for additional two-point penalty in criminal
history computation).

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on Minnesota state law or on a Sentencing Commission

"postsentence clarifying amendment," see 4A1.1(d), comment.

(n.4), the defendant was under a criminal justice sentence for

the purposes of 4A1.1(d).5

Unlike the defendant in Renfrew, however, Camilo's

sentencing date, as well as his offending conduct, was subsequent

to November 1, 1991, the effective date of both 4A1.1(d),

comment. (n.4) and 4A1.2(m). As we have previously noted, the

language of 4A1.2(m) that is relevant to our analysis almost

perfectly replicates that of 4A1.1(d), comment. (n.4), which

was relied upon by the court in Renfrew. Unlike the court in

Renfrew, we face no ex post facto problem in following 4A1.2(m)

rather than the 4A1.1(d), comment. (n.4).6 See 18 U.S.C.

3553(a)(4) (courts should consider the kinds of sentence and

sentencing range specified by the Guidelines "that are in effect

on the date the defendant is sentenced"); U.S.S.G. 1B1.11(a)

(courts are to use "the Guidelines Manual in effect on the date

5 Renfrew, 957 F.2d at 527 ("[W]hether we focus on [Minnesota

law on revocation of probation] or the Sentencing Commission's
interpretation [in 4A1.1(d), comment. (n.4),] of the phrase
'under any criminal justice sentence,' we think it clear that the
district court was correct in adding two points to Renfrew's
criminal history category calculation under 4A1.1(d)."), citing

4A1.1(d), comment. (n.4).

6 There is a possible explanation, admittedly not included in
either amendment 381's text or its accompanying statement of
purpose, for why 4A1.2(m) repeats almost verbatim the language
of 4A1.1(d), comment. (n.4). The Sentencing Commission may
have intended the application note as a post-sentencing
clarifying amendment to guide courts reviewing sentences handed
down before November 1, 1991, while 4A1.2(m), an actual
Guideline, was intended to compel the result we reach here for
sentences dating from after November 1, 1991.

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that the defendant is sentenced"). Most importantly, 4A1.2(m)

is not an application note but a Guideline definition; as such it

is not merely persuasive, but is in fact binding authority for

our interpretation of 4A1.1(d).

Given that the plain language of 4A1.2(m) is

mandatory for our purposes, and that both federal and state law

analyses lead us to the same conclusions, we therefore need not

determine here which analysis -- federal or state -- is indeed

required. Thus, as the court in Renfrew did before us, we follow

both lines of analysis without determining whether the state law

inquiry is mandatory.

We turn first to federal law. As a matter of federal

law, it may be argued that a delay in the execution of a

violation warrant may be so unreasonable that the defendant

cannot be said to be under a criminal justice sentence for

purposes of 4A1.1(d).7 We need not decide whether such a

reasonableness requirement exists in this case, however, because

under the facts of this case it would not benefit Camilo. The

argument described above would not apply where the delay is

attributable in significant part to the defendant's own wrongful

actions. Cf. United States v. Fisher, 895 F.2d 208, 211 (5th

Cir. 1990); United States v. Hill, 719 F.2d 1402, 1405 (9th Cir.

7 It has been held that jurisdiction over a probation violator
in the federal system generally does not extend indefinitely once
a valid warrant is issued. See United States v. Hill, 719 F.2d

1402, 1404 (9th Cir. 1983). Due process requires that a warrant
for a probation violation be executed within a reasonable time
after issuance. See id. at 1405. A similar requirement may

exist under 4A1.1(m).

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1983) (considering it important that the defendant had not

contributed to the delay). As the record shows, such is the case

here.

After Camilo was defaulted on his probation in January

1991, notice of surrender was sent to Camilo's last known

address, 42 East Haverhill Street, Lawrence, Massachusetts,

informing him of a March 27, 1991 probation violation hearing.

That hearing was continued until May 2, 1991. It is undisputed

that Camilo failed to show up for the May 2, 1991 hearing, and

the district court properly found that he had notice of the

hearing. Camilo also failed an April 17, 1991 court-ordered

urinalysis and was ordered to pay the testing fee and to report

for another urinalysis at the testing site. He failed to show up

for the second urinalysis. When the warrant was issued following

the May 2, 1991 default, the Essex County Probation Office, which

still had an address for Camilo in Lawrence, forwarded the

warrant to the Lawrence Police Department for execution.

However, Camilo had moved to Salem, New Hampshire sometime in

1990 but had never notified the Essex County Probation Office

that he had left the state. During this time Camilo also used a

number of aliases, including "Chicky," "Angel Castillo," and

"Blas Alberto Camilo Caraballo." The facts of record show that

Camilo simply made himself scarce during the time the warrant was

outstanding. For these reasons, therefore, Camilo cannot benefit

from any putative staleness of the warrant. See Fisher, 895 F.2d

at 211; Hill, 719 F.2d at 1405.

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Even assuming that such an inquiry is necessary, Camilo

also cannot avail himself of Massachusetts state law. Recently,

the Supreme Judicial Court recently stated that, in the context

of determining the fairness of the revocation of a defendant's

parole, one consideration is "the extent to which the parolee

reasonably relied on the inaction of the enforcing authorities."

In re Zullo, 653 N.E.2d 150, 152, 420 Mass. 872, 876 (Mass.

1995). As noted above, Camilo could not reasonably have relied

on the inaction of the enforcing authorities. He failed to

appear at a hearing of which he had notice. Moreover, his own

actions in leaving the state without notification and in using

aliases thwarted the Essex County Probation Office's and the

Lawrence Police Department's attempts to contact him.

Upon review for clear error, we conclude that the

district court received sufficient evidence to find that Camilo

had a probation violation warrant outstanding. Under our de novo

review of the Guidelines, we hold that regardless of whether we

must focus on 4A1.2(m) or Massachusetts state law, we must

affirm the district court's criminal history computation.

B. The Distinction Between Crack and Cocaine Powder
B. The Distinction Between Crack and Cocaine Powder

Camilo also argues that the district court erred in

denying his motion for a downward departure pursuant to USSG

5K2.0 and 18 U.S.C. 3553(b). Camilo's argument comprises two

parts, each of which is essential to success. First, he contends

that the district court improperly construed its discretion to

depart downward, and thus its decision to deny the departure

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should be subject to plenary review on appeal.8 Second, Camilo

contends that a departure was warranted because the United States

Sentencing Commission (the "Sentencing Commission") failed to

comply with its enabling legislation9 by adopting Congress'

previously established 100-to-1 ratio in the Guidelines'

mandatory minimum penalties for cocaine distribution, U.S.S.G.

2D1.1, without fully investigating the circumstances underlying

the ratio.

However, we need not dwell on the first part of

Camilo's argument. Even assuming, arguendo, that plenary review

applies, we reject the equally crucial second part. Camilo

asserts that a recently released Sentencing Commission report

disapproving the 100-to-1 ratio constitutes a tacit admission

that the Sentencing Commission was derelict in its duty. United

8 See United States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994)

(noting that appellate jurisdiction may attach if it appears that
the failure to depart stemmed from the sentencing court's
mistaken impression that it lacked the legal authority to deviate
from the Guideline range or, relatedly, from the court's
misapprehension of the rules governing departures); United States

v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993) (stating that

"[p]lenary review is appropriate where the question on review is
simply whether or not the allegedly special circumstances (i.e.,
the reasons for departure) are of the 'kind' that the Guidelines,
in principle, permit the sentencing court to consider at all");
cf. United States v. Pierro, 32 F.2d 611, 619 (1st Cir. 1994)

(noting that "[i]t is by now axiomatic that a criminal defendant
cannot ground an appeal on a sentencing court's discretionary
decision not to depart below the Guidelines sentencing range.").

9 Camilo cites "21 U.S.C. 941, et seq." as the Sentencing

Commission's enabling legislation, but in fact there is currently
no statute at that citation. However, 28 U.S.C. 994(c),(d)
mandates that the Sentencing Commission, in establishing
categories of offenses for use in the Guidelines, consider a
number of factors that would apply to the 100-to-1 ratio. 28
U.S.C. 994(c),(d).

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States Sentencing Commission, Special Report to the Congress:

Cocaine and Federal Sentencing Policy (February 1995). In that

report, the Sentencing Commission "firmly concludes that it

cannot recommend a ratio differential as great as the current

100-to-1 quantity ratio." Id. at 196. Furthermore, Camilo

bolsters this argument by noting that the Sentencing Commission

voted on April 13, 1995,10 to eliminate the distinction in the

Guidelines between "crack" and "powder" cocaine, and recommended

to Congress that it revise the statutory penalty distinction

between the two forms of cocaine. See 60 Fed. Reg. 25,074,

25,075-76 (1995). The Sentencing Commission concluded that "the

[G]uideline provisions, as amended, will better take into account

the increased harms associated with some crack cocaine offenses

and, thus, the different offense levels based solely on the form

of cocaine are not required." Id. Camilo asserts that because

"crack" and "powder" cocaine are "synonymous" in the scientific

and medical communities (his prospective defense witness is a

medical doctor), the Guidelines' distinction between them is

ambiguous, and therefore the rule of lenity mandates that he

receive the lesser penalty. For legal support, Camilo relies on

United States v. Davis, 864 F. Supp. 1303, 1309 (N.D. Ga. 1994).

On these grounds, argues Camilo, the district court erred by

denying his "Motion for Services Other than Counsel" and "Motion

10 See 28 U.S.C. 994(p) (providing that Sentencing Commission

amendments are to take effect upon a certain date, unless an
intervening Act of Congress rejects them).

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to Continue," thereby precluding Camilo from presenting evidence

that "cocaine" and "cocaine base" are scientifically identical.

For two reasons, we reject the contention that the

Sentencing Commission's acts or omissions compel a downward

departure for Camilo, and thus we also reject any argument for

expert testimony based on this theory. First, the rule of lenity

argument fails for essentially the same reason that this circuit

previously rejected the argument that scientific equivalence

requires that crack offenders be given the same sentences as

those who traffic in cocaine powder. United States v.

Singleterry, 29 F.3d 733, 740 (1st Cir. 1994). In Singleterry,

we concluded that health effects notwithstanding, crack in

reality does differ from cocaine powder, not least importantly

because its cheaper unit price could radically increase drug use

absent stiffer penalties for crack distributors. Id. The

similar medical effects from crack and cocaine powder do not

compel a finding of legal ambiguity, especially where there is

evidence of differing effects on society.

Second, in light of recent legislative developments we

conclude that the Sentencing Commission cannot be said to have

failed in its statutory duty to investigate the distinction

between crack and cocaine powder. In response to the Sentencing

Commission's April 13, 1995 vote, the House of Representatives

joined the Senate on October 18, 1995 in voting to retain the

current mandatory sentence for possession of crack cocaine,

maintaining disparate sentences for crack and powder cocaine

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possession. See Pub. L. No. 104-38, 1, 109 Stat. 334, 334

(1995). And on October 30, 1995, the President signed this bill

into law. Id. These actions preempt the Sentencing Commission's

April 13, 1995 decision to eliminate the distinction between

crack and cocaine powder from taking effect on November 1, 1995.

See 28 U.S.C. 994(p). In light of the October rejection of the

Sentencing Commission's April amendment, we cannot accept the

argument that the Sentencing Commission was derelict in its duty

to weigh penalties.11

Accordingly, we find no abuse of discretion in the

district court's decision not to grant a continuance to permit

the presentation of live testimony on the crack-cocaine powder

issue. See United States v. Claudio, 44 F.3d 10, 16 (1st Cir.

1995) (reviewing for abuse of discretion district court's refusal

to postpone sentencing to allow defendant's submission of live

medical testimony).

The judgment of the district court is affirmed.
affirmed

11 Because Camilo was sentenced in May 1995, we need not
confront any issue of pre-February 1995 Sentencing Commission
failure to investigate.

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