United States Court of Appeals
For the First Circuit
No. 02-1734
UNITED STATES OF AMERICA,
Appellee,
v.
NARCISO MONTERO-MONTERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lipez, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Anita Hill-Adames for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón, Chief,
Criminal Division, and Francisco Ojeda, Assistant United States
Attorney were on brief, for appellee.
June 2, 2004
HOWARD, Circuit Judge. In this appeal, Narciso Montero-
Montero challenges the district court’s two-level upward adjustment
of his sentence on the ground that Montero employed “special
skills” in piloting a boat while participating in a drug
trafficking conspiracy. See U.S. Sentencing Guidelines Manual §
3B1.3. We vacate and remand for further inquiry by the district
court.
In March 2002, Montero pled guilty to one count of
conspiracy to possess cocaine with intent to distribute and
admitted to forfeiture allegations in a second count. See 21
U.S.C. §§ 841, 853. As part of his plea agreement, Montero
stipulated that he and several others had conspired to smuggle
hundreds of kilograms of cocaine into Puerto Rico in January 1999.
To prepare to make this shipment, Montero’s co-conspirators
procured a thirty-three-foot speed boat or “go-fast boat” and
outfitted it with auxiliary fuel tanks. The co-conspirators
brought the boat from St. Thomas to a designated meeting point at
sea and picked up approximately 1,000 kilograms of cocaine. They
then brought the shipment to a beach in Puerto Rico during the
early morning hours of January 23, 1999, where they were met by
Montero and others. Montero assisted in unloading the shipment for
distribution in Puerto Rico.
After the shipment was unloaded, Montero and a co-
conspirator boarded the empty boat with the intent to return it to
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St. Thomas. While the boat was still in the coastal waters of
Puerto Rico, a marine unit of the U.S. Customs Service stopped it.
Although no contraband was found on board, the boat smelled as
though it had been cleaned with chlorine and contained bottles of
bleach. Montero and his co-conspirator also had bleach spots on
their clothing. The boat was seized as a vessel used in drug
smuggling, and Montero and eight others were later indicted by a
federal grand jury.
Montero pled guilty pursuant to a plea agreement,
accepting responsibility for possessing between 50 and 150
kilograms of cocaine. In the plea agreement, the parties agreed
that Montero was eligible for both a two-level reduction in his
base offense level because he was a minor participant in the
offense, see U.S.S.G. § 3B1.2(b), and a three-level acceptance-of-
responsibility reduction. See id. § 3E1.1. Montero acknowledged
in the agreement, however, that any sentence to be imposed was
within the sound discretion of the sentencing judge.
At sentencing, the district court made the two sentence
adjustments contemplated in the plea agreement but also found, sua
sponte (and without any request by the government), that Montero’s
sentence should be adjusted upward pursuant to § 3B1.3 of the U.S.
Sentencing Guidelines on the basis of his use of “special skills”:
The defendant worked all his life as a
fisherman. Therefore, he possessed special
skills that facilitated the commission of the
offense, and as such, in this particular case,
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he was not only offloading but also he was on
the boat, the 33-foot fast boat, taking it
back to St. Martin [sic] when he was
intercepted by the marine units, and therefore
. . . I find that he has special skills in
navigating boats, and as such, a two-level
increase is authorized pursuant to Guideline
3B1.3.
Defense counsel objected on the ground that there was no evidence
that the defendant in fact had used motor vessels in his job as a
fisherman. In response, the district court cited similarities
between the underlying offense and a prior smuggling arrest in 1994
that was described in Montero’s presentence report. The report
stated that, in the earlier offense,
[t]he defendant and co-conspirators pre-
arranged coordinates off the coast of Puerto
Rico, Saint Thomas and Saint Croix, U.S.
Virgin Islands, Saint Marteen, Netherlands
Antilles, and elsewhere to successfully
transfer cocaine from either plane or vessel
to private fishing boats, commonly referred to
as yawls, destined for Puerto Rico.
The court commented that Montero may have “ha[d] the skills to
pilot a boat back in 1994, and that is what he did here . . . .”
Application of the three adjustments yielded an offense level of
33, and a guidelines sentencing range of 151 to 188 months.1 The
district court then sentenced Montero to 151 months’ imprisonment
and a seven-year supervised release term.2
1
The district court found that Montero had a criminal history
category of II.
2
Without the special skills adjustment, Montero would have
been subject to an offense level of 31 and a guidelines sentencing
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We review de novo the district court’s interpretation of
the phrase “special skills.” See United States v. Noah, 130 F.3d
490, 499 (1st Cir. 1997). The court’s application of the
sentencing guidelines to the facts is reviewed for clear error.
See id.
In considering the defendant’s challenge to the special
skills adjustment, we first ask whether the district court
supportably found that the defendant had a special skill within the
meaning of the sentencing guidelines. See United States v.
Connell, 960 F.2d 191, 198 (1st Cir. 1992). If so, we then ask
whether the district court supportably found that the skill was
used “in a manner that significantly facilitated the commission or
concealment” of the underlying offense. See id.
Looking to the presentence report, the district court
concluded that, as a lifelong fisherman and a participant in an
earlier maritime smuggling conspiracy, Montero had developed an
aptitude for navigating boats. The court concluded that this
constituted a special skill as defined in the application notes of
U.S. Sentencing Guidelines § 3B1.3, namely “a skill not possessed
by members of the general public and usually requiring substantial
education, training or licensing.” U.S.S.G. § 3B1.3, cmt. n.3
(providing examples of persons with special skills, such as
“pilots, lawyers, doctors, accountants, chemists, and demolition
range of 121 to 151 months.
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experts”). The district court found that Montero had used special
skills in beginning to navigate the boat toward St. Thomas, a
voyage that, had it been completed, would have required negotiating
the keys between the two islands in the morning hours on a vessel
with powerful engines.
Montero argues that this finding was clearly erroneous
because he has only a fourth grade education and lacks any training
or education. We have recognized that a defendant need not be
formally educated or trained to possess a special skill. See Noah,
130 F.3d at 500 (“To the contrary, a special skill can be derived
from experience or from self-tutelage.”). Here, however, we are
left to speculate from the record whether Montero had experience as
a navigator of boats. The sole reference in the presentence report
to Montero’s background as a fisherman stated only that “[t]he
defendant reported having worked all of his life as a fisherman and
handyman. Reportedly, he has good skills in diving.” Likewise, the
presentence report notes Montero’s background as a participant in
an earlier drug smuggling operation but does not suggest that
Montero ever navigated a boat in connection with these activities.
Thus, the district court’s suggestion that Montero may have had
some role in navigating a boat in connection with the 1994
smuggling operation is not supported by the record before us.
Similarly, there is at least a question whether any
special navigational skills Montero might have possessed were used
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in a manner that significantly facilitated the commission or
concealment of the offense. While disposing of a boat used in a
shipment of contraband would undoubtedly aid the concealment of the
offense, and while the navigation of a powerful boat between Puerto
Rico and St. Thomas could supportably be found to require a special
skill, see Calderon, 127 F.3d at 1339-40, the record now lacks
evidence that Montero was in fact navigating the boat. As the
government acknowledged at oral argument, the record reflects that
Montero was a member of a two-man crew; it does not show whether
Montero was piloting the boat or otherwise employing special skills
in connection with its navigation. We therefore think that the
most appropriate course of action is to vacate and remand either
for any further record development about Montero’s skill level and
role in navigating the boat on the night of his arrest that the
district court sees fit to pursue, see United States v. Medina, 167
F.3d 77, 80 (1st Cir. 1999) (vacating and remanding for more
specific findings about defendant's managerial role); United
States v. Rivera, 83 F.3d 542, 548 (1st Cir. 1996) (vacating and
remanding for further record development with respect to a
sentencing enhancement); see also United States v. DiPina, 178 F.3d
68, 77 (1st Cir. 1999) (vacating and remanding for determination
whether defendant’s prior juvenile offenses were properly
considered part of criminal history), or, if no such evidence is
available or forthcoming, for resentencing without application of
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the special skills adjustment.3
We leave open the possibility of factfinding on remand,
recognizing that the plea agreement may circumscribe the role of
the government somewhat, because all parties appear to have been
taken by surprise at the district court's decision to impose a
special skills enhancement. As discussed above, this adjustment
was neither contemplated by the plea agreement nor sought by the
government; the district court raised the issue sua sponte at
sentencing. This is thus not a case where the government asked for
the enhancement but failed to adduce sufficient proof for its
imposition - - a situation in which there would not likely be
reason to permit a second bite at the apple. Cf. United States v.
Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (declining to
prohibit introduction of new evidence on remand, but distinguishing
cases in which "there was a failure of proof after a full inquiry
into the factual question at issue"); United States v. Parker, 30
F.3d 542, 553-54 (4th Cir. 1994) (government not entitled to
introduce additional evidence to support enhancement at
resentencing, when a full and fair opportunity already given).
Vacated and remanded.
3
In light of this disposition, we do not reach Montero's
argument that the district court erred in enhancing his sentence
sua sponte without notice of its intention to do so.
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