United States v. Vazquez-Rivera

United States Court of Appeals
For the First Circuit

No. 02-1818

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE A. VÁZQUEZ-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Circuit Judge,
Porfilio,* Senior Circuit Judge,
and Howard, Circuit Judge.

Edward J. DeAngelo, was on brief, for appellant.
Sonia I. Torres-Pabón, Assistant United States Attorney,
Chief, Criminal Division, with whom H.S. García, United States
Attorney, and Germán A. Rieckehoff, Assistant United States
Attorney, were on brief, for appellee.

May 18, 2005

*
Of the Tenth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Defendant-appellant Jorge A.

Vázquez Rivera ("defendant") appeals from his conviction on one

count of conspiracy to possess cocaine and heroin with intent to

distribute under 21 U.S.C. § 846. For the reasons stated below, we

affirm his conviction.

I.

We recount the relevant facts in the light most favorable

to the jury verdict. See United States v. Casas, 356 F.3d 104, 109

(1st Cir. 2004).

The government presented the testimony of seven witnesses

in its case in chief, six of whom testified pursuant to plea

agreements. José Borrero Feliciano ("Borrero") testified that,

after he was released from prison in 1991, he approached defendant

about working for him in the drug business. Borrero stated that,

after defendant consulted with Roberto Soto Andón ("Soto"), he

began selling cocaine and heroin on behalf of defendant and Soto.

According to Borrero, defendant told him that he was in charge of

the drug point at the La Ceiba Housing Project in Ponce, Puerto

Rico ("the Ceiba drug point"). Borrero stated that he never saw

defendant sell drugs on the street, but that he went to defendant's

home to replenish his drug supplies.

Alberto Negrón Constantino ("Negrón") testified that he

met defendant in 1995 and sold him cocaine and heroin for

distribution by Soto's drug operation. Negrón initially sold

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cocaine and heroin to defendant's brother Víctor Vázquez Rivera.

In late 1996 or early 1997, Negrón began working for Soto.

According to Negrón, Soto removed defendant as the head of the

Ceiba drug point. Negrón then took over the Ceiba drug point and

began purchasing the cocaine and heroin for the drug point himself.

Another co-conspirator, Daniel Sánchez Ortiz ("Sánchez"), testified

that he was a drug runner in the Soto organization and that he

bought and sold drugs from defendant's brother. While Sánchez

never dealt directly with defendant, he was instructed by Víctor

Vázquez Rivera that he was acting on behalf of defendant.

Another witness, Edwin Meléndez Negrón, stated that he

had been supplied drugs by defendant for his drug point elsewhere

in the Ponce area. In addition, he testified that he went to Las

Cucharas jail in Ponce, Puerto Rico with defendant to visit Soto

while he was confined there. Alexander Figueroa Delgado testified

that he lived for about a month with a cousin who sold heroin for

defendant. Finally, Yazmin Laracuente Alameda testified that after

her husband was arrested on drug charges, she began selling cocaine

for defendant.

Defendant appealed from the jury verdict, alleging the

following: (1) improper testimony from a government witness; (2)

the prosecutor's closing arguments were rife with error; and (3)

defendant's sentence was improperly enhanced. In supplemental

briefing, defendant also appealed his sentence on the basis that it

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was imposed in violation of United States v. Booker, 125 S. Ct. 738

(2005). We address each argument in turn.

II.

A. Improper Testimony

Defendant argues on appeal that the case agent, Iván

Lugo, gave improper vouching testimony. Because there was no

contemporaneous objection, we review for plain error. To show

plain error, a defendant must show that an error occurred, which

was clear and obvious; and that it affected defendant's substantial

rights and seriously impaired the fairness, integrity or public

reputation of the public proceedings. See United States v. Pérez-

Ruiz, 353 F.3d 1, 9 (1st Cir. 2003).

Defendant argues that the testimony of Agent Lugo was

improper because, in the course of rebuttal, the prosecution twice

elicited a statement from Lugo purporting to "certify" that Víctor

Vázquez Rivera, defendant's brother, would not have received a

safety valve credit if he had not incriminated the defendant.

Further, defendant argues, it was improper to allow testimony that

Agent Lugo "already knew" that defendant was involved in drug

trafficking.

Improper vouching occurs when "prosecutors . . . place

the prestige of the United States behind a witness by making

personal assurances of credibility or by suggesting that facts not

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before the jury support the witness's account." United States v.

Torres-Galindo, 206 F.3d 136, 140 (1st Cir. 2000).

Agent Lugo initially testified in the government's case

in chief. The statements that defendant objects to on appeal were

given after defendant's brother, Víctor Vázquez Rivera, testified

for the defense. Víctor Vázquez Rivera testified that his brother

was not involved in Roberto Soto's operations and that he had never

distributed cocaine or heroin. In order to impeach Vázquez

Rivera's testimony, the government called Agent Lugo to the stand

again. He testified to the following:

Q [by AUSA]: Sir, did you have an
opportunity to interview Víctor Vázquez
Rivera?

Agent Lugo: Yes, ma'am.

Q: And what was the purpose of that
interview?

A: It was a safety valve debriefing.

Q: Please explain to the members of
the jury, what is a safety valve debriefing?

A: Safety valve debriefing is an
opportunity for the defendant [referring to
Víctor Vázquez Rivera] to speak to the
government and give us his admissions of their
[sic] criminal activities. And this statement
cannot be used against him once [he] give[s]
it to us at that particular time, and in
return they receive the benefit of the safety
valve debriefing.

Q: When you say give the opportunity,
[Víctor Vázquez Rivera] an opportunity to
speak about him, is he also required under the
law to speak about everything he knows?

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 A: Yes, ma'am.

. . . .

THE COURT: Well, when you say about
everything he knows, so that we are exact, the
requirement on the safety valve debriefing is
that he testifies about everything he knows
about the offense that he is pleading to, or
other offenses that have a common scheme or
plan with that offense . . . .

. . . .

Q: Do you recall what, if anything,
did Víctor Vázquez say about Jorge Vázquez,
his brother during that debriefing?

A: Yes, ma'am. The first thing that I
remember in reference to that is when I
started talking to him about his brother and
Robert[o Soto-Andón], he refused to talk. He
said that he wasn't going to say anything
regarding his brother or Robert[o Soto-Andón].
And at that point --

. . . .

A: At that point he was advised, you
know, that if he didn't say everything that he
knew, he couldn't receive credit.
He kept stubbornly saying that he
wasn't going to say anything, that he didn't
care.
At that point I contacted the U.S.
Attorney's Office and advised them of the
problem I was having. And you know, it was
conveyed to Mr. Vázquez, Víctor Vázquez, that
he had to say everything that he knew related
to the charges that he had been involved, with
the criminal activities he had been charged,
and that part of that was talking about his
brother.
He stated that he was not going to
testify against his brother or anybody else
and then reluctantly admitted his brother
worked for Robert[o Soto-Andón], he was a
runner for [him].

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 . . . .

Q: Sir, do you know if the government
certified later on [sic] the court that Víctor
Vázquez had complied with meeting with the
United States and providing all information he
had?

A: Yes, ma'am.

. . . .

Q: [After Agent Lugo was shown a copy
of his notes] Sir, is this the only reference
to Robert[o Soto-Andón] and [defendant] in any
of these notes?

A: Yes, ma'am. If you notice, it has
the asterisk next to it, that was when we
reached the point during the interview that I
began to have the problem that I mentioned
earlier with Mr. Víctor Vázquez. Once I asked
him about Robert[o Soto-Andón] and his
brother, that was when we had that problem and
I made those notations there, the asterisk.
Also, the part about [defendant] being a
"compadre" of --

Q: Why did you put that down?

A: Because I didn't know that. I knew
about Robert[o Soto-Andón] organization, about
the drug trafficking, but I had no knowledge
that [defendant] was the "compadre" of
Robert[o Soto-Andón]. So I felt that was
something I had to write down to remember it.

Q: Who gave you that information?

A: Víctor Vázquez, ma'am . . . .

After defendant's counsel cross-examined Agent Lugo

regarding his taking of notes during the safety valve debriefing,

Agent Lugo gave the following testimony on redirect:

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 Q: Mr. Lugo, would the government have
certified that Víctor Vázquez had provided the
information if he had not stated the
information about his brother?

. . . .

A: No, the government would not certify him.

Defendant argues that Agent Lugo attempted to vouch for

the credibility of Víctor Vázquez Rivera. Defendant's argument

fails because Agent Lugo was not attempting to bolster the

credibility of any witness, he was merely explaining the procedure

under 18 U.S.C. § 3553(f). Agent Lugo was not, as defendant

suggests, stating that Víctor Vázquez Rivera told the truth at the

safety valve hearing, although that is its purpose. See generally

United States v. Matos, 328 F.3d 34, 39 (1st Cir. 2003)(stating

that "a safety valve debriefing is a situation that cries out for

straight talk; equivocations, half-truths, and veiled allusions

will not do"). Instead, the statement was introduced to show that

Víctor Vázquez Rivera gave a prior inconsistent statement to Agent

Lugo, which contradicted his testimony during the trial. The

statement was couched in terms of the certification, but that was

not meant to imply that the government was vouching for Víctor

Vázquez Rivera's credibility; in fact, it sought the opposite -- to

impeach by providing a statement which contradicted his trial

testimony. Cf. Pérez-Ruiz, 353 F.3d at 12 (the prohibition on

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vouching extends to propping up a dubious witness through the

testimony of a government agent).

Defendant also objects to the agent's testimony regarding

his knowledge of the drug operation as inadmissible hearsay, and

points to United States v. Casas, 356 F.3d 104 (1st Cir. 2004), as

analogous to this appeal. In Casas, we held that the testimony of

a government agent that the defendants were members of a drug

conspiracy was inadmissible hearsay. Id. at 117-18. Defendant's

argument must be rejected, however, because here the statement was

not offered to prove that a conspiracy existed, but only to explain

why the agent's notes had omitted certain information. See Fed. R.

Evid. 801(c)(stating that hearsay is "a statement, other than one

made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted").

In Casas, the testimony was given by the case agent to prove that

the conspiracy existed. Id. at 118 (stating that the agent

testified as to the existence of the drug trafficking organization,

that all four defendants were members and that the organization

handled cocaine and heroin). It was found to be reversible error

to admit the testimonial statement in that case because it sought

to establish the existence of the conspiracy, i.e., the ultimate

issue in the case, before the jury had made that determination.

Here, as the statement was not offered for its truth, it is not

hearsay.

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 Defendant also argues that the statement regarding the

safety valve hearing was improper hearsay testimony. Where, as

here, a statement is introduced to impeach a statement that a

witness provided on direct examination, the statement is admissible

for that purpose. The government argues that the evidence is

admissible under Fed. R. Evid. 613(b), which provides for the

admissibility of extrinsic evidence of a prior inconsistent

statement by a witness as long as the witness is afforded an

opportunity to explain or deny his statement. See United States v.

Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999)(holding that

"comparison and contradiction are the hallmarks of Rule 613(b)").

In this case, Víctor Vázquez Rivera testified and was cross-

examined and had ample opportunity to explain himself. Id. at 559.

There was no error in allowing the testimony.

B. Closing Argument

Defendant argues that the Assistant United States

Attorney engaged in prosecutorial misconduct during closing

argument and rebuttal. Because there was no objection made in the

district court during the closing argument, we review only for

plain error. See Pérez-Ruiz, 353 F.3d at 9 (citing United States

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

1. Vouching During Closing Argument

"A prosecutor improperly vouches for a witness when she

places the prestige of her office behind the government's case by,

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say, imparting her personal belief in a witness's veracity or

implying that the jury should credit the prosecution's evidence

simply because the government can be trusted." Pérez-Ruiz, 353

F.3d at 9 (citing United States v. Figueroa-Encarnación, 343 F.3d

23, 28 (1st Cir. 2000)).

The defense alleges that the following statements made

during closing arguments constituted improper vouching:

[d]id [Víctor] implicate his brother? If not,
how did he get that advantage from ten to
five? Because he complied with the safety
valve, and he was told this is a confidential
things [sic], this is for intelligence
purposes.

. . .

Couldn't Agent Lugo come up with a
better story if we're going to talk about, you
know, I'm going to come and "cuadrar esto"1 to
say something that didn't happen. Consider
what was not said, look at those notes.
Couldn't Agent Lugo put, "Yes, he told me
this, this, and this, and this didn't happen."
Wouldn't that be a better story to present
before the jury?

And that's one thing I also ask you,
when you consider are these people making up
stories, couldn't they have made up a better
story? They've been in jail for four years,
couldn't everything have come in here
"cuadrao," he lived here, he did this and
this. They had all the time in the world, but
that was not the case. They had
contradictions like human beings are [sic].

1
"Square this."

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 According to defendant, the prosecution improperly

vouched for witnesses during closing argument because it used the

fact that Víctor Vázquez Rivera got a safety valve reduction as

evidence of his truthfulness. Defendant argues that the government

put its prestige behind Víctor Vázquez Rivera's testimony.

Defendant argues that under United States v. Auch, 187

F.3d 125, 131-32 (1st Cir. 1999), and United States v. Manning, 23

F.3d 570, 572-73 (1st Cir. 1994), this type of vouching amounts to

prosecutorial misconduct.2 In Pérez-Ruiz, we made clear that any

dictum from Auch, which "rest[ed] on an understandable misreading

of [Manning]," was disclaimed. Pérez-Ruiz, 353 F.3d at 10 (stating

that the statements made in Auch were not good law). During the

course of the trial, defendant questioned the veracity of every

witness in the government's case in chief, charging them with bias

resulting from their negotiated plea and cooperating agreements.

The closing argument was "a logical counter to the

assertions of defense counsel, made in summation, that various

government witnesses had fabricated their testimony because they

2
In Manning, this court condemned as vouching a portion of the
prosecutor's statement containing the argument that a detective
would have created a more damaging story had he intended to
fabricate evidence. Manning, 23 F.3d at 572. The portion found to
constitute vouching, though, consisted of statements at the
conclusion of this line of argument to the effect that government
witnesses do not lie. Id. at 572-73. In dictum in Auch, the
Manning ruling was mischaracterized to suggest that the argument
that a witness would have fabricated a better story had he intended
to lie amounts to vouching. Auch, 187 F.3d at 131-32.

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wanted the [defendant] behind bars and would stop at nothing to put

him there. We typically cede prosecutors some latitude in

responding to defense counsel's allegations of fabrication."

Pérez-Ruiz, 353 F.3d at 9-10. Given the defense's strategy, we

believe that the prosecutor was directly addressing defendant's

numerous allegations of fabrication and not improperly vouching for

witnesses by placing the government's prestige behind them.

2. Reference to murder conviction

Defendant argues that the prosecution made a gratuitous

reference to Soto's murder conviction by saying that he was serving

time for murder when defendant visited him at Las Cucharas and that

the prosecutor argued guilt by association. "A defendant is

entitled to have the question of his guilt determined by the

evidence against him, not on whether a co-defendant or government

witness has been convicted of the same charge." United States v.

Dworken, 855 F.2d 12, 30 (1st Cir. 1988).

On the first day of trial, the government and defendant

informed the judge that they had reached an agreement not to

mention most or any murders that involved witnesses. Soto was

convicted of first degree murder and released on probation before

the conspiracy at issue here began. The government's theory of the

case involved the defendant's visits to Soto's house, in particular

where he went with a government witness during Soto's probation.

Defendant concedes that this association was relevant to the

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conspiracy, but argues that there was no need to mention the

conviction and the only reason that the prosecutor did so was so

the jury would be more likely to convict.

The government argues that evidence of the murder

conviction was already entered into the record through the

testimony of several witnesses. See United States v. McKeeve, 131

F.3d 1, 14 (1st Cir. 1997)(holding that a prosecutor may accurately

describe the testimony the jury already heard through witness

testimony in the closing). The record reveals that the comment

defendant identifies referred to his continued assistance of Soto

even after his murder conviction. There was nothing improper in

stating a fact that had already been entered into the record,

particularly since the comment did not implicate defendant in any

murder. The charge of conspiracy was, in context, related to

defendant's role as Soto's second in command for a certain period

of time, which included the time Soto was on probation, under house

arrest for first degree murder.

Moreover, at the beginning of the trial, counsel agreed

that while certain murders would not be mentioned to the jury,

there were some murders incidental to the conspiracy which would be

entered into evidence. Because there was a specific agreement

between the parties, we are convinced this could not rise to any

error on the part of the district court. See Casas, 356 F.3d at

126 (where defendant specifically agreed to let the court inform

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the jury about a plea agreement -- which contained mention of

murders -- objections are waived).

3. Improper Appeal to Jury's Passion And Prejudice

Defendant argues that the cumulative effect of the

closing was to inflame the jury's passions to deprive him of a fair

trial. Defendant argues that the closing, as excerpted below,

incited the jury to find him guilty.

[T]here's going to be argument, oh, they were
really bad people, they would rob, all they
did was sell drugs, and they would consume
drugs. But when you hear that argument, ask
yourself, people like Borrero, who was he
selling drugs for? [Defendant]. People who
are smarter than him. People who have better
opportunities than people like [Borrero] that
just grew up at the Ceiba Housing Project,
that never had an education, never had an
opportunity.
And you think about Alexander Figueroa.
Oh, he's a convicted murderer. And yes, he
is, and he's a despicable human being, a
person that had no pity for people like
Jeannette, the 19-year-old girl that he
carjacked. When you examine his testimony, I
invite you, ladies and gentlemen, to consider
what has Alex Figueroa done all his life?
Since he was 12 years old, all he did was
consume narcotics, 'meterse drogas' as they
say, and rob. And rob for what? To get more
money, to get more drugs.
And who was [sic] the drugs he was
selling for? [Defendant]. I submit to you
when you consider credibility, you say
Alexander Figueroa is real bad, we agree he is
real bad. But who was he doing that for? For
people like [defendant], that you heard
evidence, even from [defense] witnesses, that
had better opportunities in life. That's who
he was selling drugs for.

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 These statements are of the species of commentary that

may inflame the jury's passion. Not only was the issue of drug

trafficking addressed as social malaise, but it seemed to introduce

an element of social standing into the closing -- that defendant

was more guilty than the others because he had had the opportunity

to do something with his life, but instead chose drug trafficking.

We cannot say, however, that "[t]hese comments interjected issues

having no bearing on the defendant's guilt or innocence and

improperly appealed to the jury to act in ways other than as

dispassionate arbiters of the facts." United States v. Mooney, 315

F.3d 54, 59 (1st Cir. 2002)(citations omitted). Defendant relies

on United States v. Arrieta-Agressot, 3 F.3d 525, 527 (1st Cir.

1993), which found that the prosecutor's highly emotional argument,

coupled with the lack of a curative instruction, was reversible

error. Id. Determining whether the comments are objectionable is

not the end of the inquiry. "Improper remarks are grounds for

reversal only if they 'so poisoned the well' as to have likely

affected the trial's outcome." Mooney, 315 F.3d at 60 (quoting

United States v. Cartagena-Carrasquillo, 70 F.3d 713 706, 713 (1st

Cir. 1995)). We cannot say these closing remarks would have

affected the trial's outcome. The comments were brief, isolated,

and repetitive of witnesses' own testimony during the government's

case in chief. Mooney, 315 F.3d at 60.

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 Defendant also argues that the prosecution, in closing,

improperly referred to defendant's testimony, intimating it was

untruthful. The prosecutor stated "[w]ho has the most interest in

the outcome of this case? [Defendant], who takes the stand and

tells you, ladies and gentlemen, that [Soto's] dad asked him to go

visit him in jail so he can talk to him." However, on this issue,

as above, the government argues that the defense had put every

witnesses's credibility at issue. Under such circumstances, this

type of reference cannot fairly be construed as an inappropriate

reference to defendant's credibility. See Pérez-Ruiz, 353 F.3d at

9-10.

Finally, defendant argues that, given the prosecution's

behavior during the trial, he was denied a fair trial. We have

held that "individual errors insufficient of themselves to

necessitate a new trial may in the aggregate have a more

debilitating effect." United States v. Sepúlveda, 15 F.3d 1161,

1195-96 (1st Cir. 1993). Defendant argues that this was such a

case because: there was sufficient reason to disbelieve the

government's witnesses given their strong incentives to testify

against defendant; witnesses' testimony had factual errors; they

were all housed in the same federal prison; and the prosecution had

no physical evidence against defendant. Since we believe no errors

were committed in the course of the trial, defendant's argument

regarding due process fails.

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C. Sentencing

Following the jury verdict, the defendant's case was

transferred to a sentencing judge who reviewed the trial transcript

and imposed a sentence based on the United States Sentencing

Guidelines ("USSG"). The sentencing judge accepted the pre-

sentence report's ("PSR") drug quantity recommendation of five to

fifteen kilograms, and imposed a three-level enhancement under USSG

§ 3B1.1(b) for the defendant's role in the offense and a two-level

enhancement under USSG § 2D1.1(b)(1) for weapon possession. The

resulting sentencing range was 210 to 262 months. The applicable

range was reduced to 210 to 240 months because of the twenty-year

statutory maximum.3 21 U.S.C. § 841(b)(1)(C). The judge imposed

a sentence of 210 months in prison and three years of supervised

release. The defendant objected to all three of the sentencing

judge's findings in a written response to the PSR, arguing, with

references to Apprendi v. New Jersey, 530 U.S. 466 (2000), that

imposition of a sentence based on facts not found by a jury

constituted a violation of his due process rights.

Both parties submitted supplemental briefing following

the Supreme Court's decisions in Blakely v. Washington, 124 S. Ct.

2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005).

The defendant argues that the sentencing judge violated the rule

3
Without the findings in question, the Guidelines sentencing
range would have been ten to sixteen months.

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announced in Booker by imposing a sentence on the basis of a

mandatory Guidelines system, and that the sentence should therefore

be vacated and the case remanded for resentencing.

The Booker holding applies to all cases, like the present

one, pending on direct review at the time it was decided. 125 S.

Ct. at 769. In United States v. Antonakopoulos, 399 F.3d 68, 76

(1st Cir. 2005), we concluded that "[t]he argument that a Booker

error occurred is preserved if the defendant below argued Apprendi

or Blakely error or that the Guidelines were unconstitutional."

Id. In the pre-Blakely sentencing proceedings below, the defendant

argued, citing Apprendi, that imposition of a Guidelines sentence

based on facts not found by the jury was unconstitutional. Thus,

under the liberal standard of Antonakopoulos, the Booker error was

preserved.

In its supplemental brief on Booker, the government

concedes the error was preserved, but, for the first time, argues

that the defendant has waived the Blakely/Booker argument by

failing to raise it in his initial brief on appeal.4 While we have

4
The government notes, further, that defendant's opening brief
acknowledged that "the sentencing judge correctly determined that
under Apprendi v. New Jersey, 530 U.S 466 (2000), the maximum
sentence was 20 years, under 21 U.S.C. § 846." This assertion --
contained in a footnote describing the sentencing judge's correct
application, due to the absence of a specific quantity in the
indictment or jury findings, of the statutory sentencing range for
an uncharged quantity of drugs -- was not addressed to the
implications of Apprendi for the constitutionality of Guidelines
enhancements based on judge-found facts. We therefore do not read
it as waiving or forfeiting the constitutional objections

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often reiterated that issues raised only in a reply brief or at

oral argument are generally considered waived, we will exercise our

discretion to consider new issues under exceptional circumstances.

See, e.g., N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45

(1st Cir. 2001) ("[A]bsent exceptional circumstances, an appellant

cannot raise an argument for the first time in a reply brief.").

In the instant case, the parties' briefs were submitted prior to a

substantial change in the applicable law wrought by the Supreme

Court's decisions in Blakely and Booker. This change constitutes

an "exceptional circumstance" in which we will permit new issues to

be raised, and we accordingly accepted supplemental briefing from

both sides. See DSC Communications Corp. v. Next Level

Communications, 107 F.3d 322, 326 n.2 (5th Cir. 1997) (finding

issue raised only in supplemental brief not waived because "[w]e

are unwilling to ignore [an] important clarification of the law,

and perpetuate incorrect law, merely because [a controlling case]

was decided after briefing and oral argument in this case"); cf.

Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir. 1990)

(finding argument waived because, inter alia, appellant "did not

make it in the supplemental briefing before us"). Likewise, in our

recent decision in United States v. Serrano-Beauvaix, 400 F.3d 50

(1st Cir. 2005), another panel of this court considered the merits

of a Booker argument not raised in appellant's opening brief. See

underlying the instant Booker argument.

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Supplementa1 Brief for Appellee at 7, United States v. Serrano-

Beauvaix, 400 F.3d 50 (1st Cir. 2005) (No. 02-2286) (arguing that

Booker argument was waived due to failure to assert in opening

brief). Thus, we will proceed to review the defendant's preserved

Booker claim.

1. Standard of review

As we indicated in Antonakopoulos, the Booker error "is

not that a judge (by a preponderance of the evidence) determined

facts under the Guidelines which increased a sentence beyond that

authorized by the jury verdict or an admission by the defendant;

the error is only that the judge did so in a mandatory Guidelines

system." 399 F.3d at 75. Nevertheless, the Supreme Court drew a

distinction in Booker between those cases in which the sentencing

court erred only in applying mandatory Guidelines, and those with

an underlying constitutional violation, in which the mandatory

Guidelines sentence was based in part on facts not admitted by the

defendant or found by a jury. 125 S. Ct. at 769 (vacating both

defendants' sentences while recognizing that Booker's sentence

violated the Sixth Amendment but Fanfan's, which was based solely

on the facts found by the jury, did not). The Court instructed

that we "must apply [Booker's] holdings -- both the Sixth Amendment

holding and our remedial interpretation of the Sentencing Act -- to

all cases on direct review." Id. Nevertheless, the Supreme Court

did not anticipate that all Booker errors would require remand and

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resentencing, in part "because, in cases not involving a Sixth

Amendment violation, whether resentencing is warranted or whether

it will instead be sufficient to review a sentence for

reasonableness may depend upon application of the harmless-error

doctrine." Id.

The defendant seizes on this sentence, arguing that it

implies that cases that do involve a Sixth Amendment violation

must be automatically remanded, without harmless error review. We

agree that the defendant's sentence involved a Sixth Amendment

violation within the meaning of Booker: neither the drug quantity,

the defendant's role in the offense, nor his responsibility for the

possession of a firearm by a co-conspirator were admitted by the

defendant or found by the jury. Nevertheless, we disagree that

harmless error review is inapplicable to such cases.

The language the defendant relies upon from Booker

anticipates the outcome of harmless error review in cases

challenging only the mandatory application of the Guidelines, but

it does not preclude harmless error review of cases involving an

underlying Sixth Amendment violation.5 The Supreme Court has made

5
The defendant's references to Sullivan v. Louisiana, 508 U.S.
275 (1993) are not on point. Sullivan addressed the
inapplicability of constitutional harmless error review to a jury
conviction made without an adequate reasonable doubt instruction.
A reviewing court cannot determine that the same verdict would have
been rendered had the proper instruction been given, without itself
violating the constitutional guarantee of a jury trial. Id. at
279. With Booker error, in contrast, we are dealing with the
decision process of a sentencing judge. It may well be possible to

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clear that not all errors of constitutional dimension require

automatic reversal. Chapman v. California, 386 U.S. 18, 22 (1967).

As we explained in Antonakopoulos, it is not certain that a

sentence would always be different under the advisory regime. 399

F.3d at 80. Indeed, sometimes the opposite may be clear, as when

a sentencing judge has explicitly stated that he would impose the

same sentence even if he had discretion to depart from the

Guidelines. See, e.g., United States v. Carpenter, -- F.3d --,

2005 WL 708335, at *5 (1st Cir. Mar. 29, 2005) (finding no plain

error where sentencing judge stated that, even if he had discretion

depart from a Guidelines sentence, he would not do so). Moreover,

even when it involves an underlying Sixth Amendment violation,

Booker error is not structural in nature. Id. at 80 n.11. Thus,

preserved Booker error does not require an automatic remand, but

must be reviewed for harmlessness. See Fed. R. Crim. P. 52(a)

(error not affecting substantial rights shall be disregarded).

The burden of proving that the preserved Booker error did

not affect the defendant's substantial rights lies with the

government. See Chapman, 386 U.S. at 24. The standard of proof,

however, depends on whether the error is conceived of as

constitutional. Compare id. ("[B]efore a federal constitutional

error can be held harmless, the court must be able to declare a

determine, on the basis of the judge's articulated rationale,
whether the same sentence would have been imposed under an advisory
Guidelines regime.

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belief that it was harmless beyond a reasonable doubt.") (emphasis

added), with Kotteakos v. United States, 328 U.S. 750, 764-65

(1946) (determining that error is not harmless if court "is left in

grave doubt"); see also O'Neal v. McAninch, 513 U.S. 432, 437-38

(1995) (comparing Chapman and Kotteakos standards). Since we have

described the Booker error as the mandatory application of the

Guidelines, and since under an advisory Guidelines regime a judge

may make findings of fact without falling afoul of the

Constitution,6 one might surmise that Booker error is not

constitutional error. This conclusion would be incorrect in the

instant case, where a mandatory Guidelines sentence was imposed on

the basis of judge-found facts.7 Mandatory application of the

Guidelines in such a case violates the defendant's Sixth Amendment

6
As the Second Circuit explained in United States v. Crosby, 397
F.3d 103, 109 n.6, (2d Cir. 2005), "[a]s a result of the Remedy
Opinion in Booker . . . the maximum lawful sentence is the
statutory maximum sentence, and because judicial fact-finding under
advisory guidelines cannot increase that lawful maximum, judicial
fact-finding now encounters no Sixth Amendment difficulties." See
Booker, 125 S. Ct. at 750 ("[W]hen a trial judge exercises his
discretion to select a specific sentence within a defined range,
the defendant has no right to a jury determination of the facts
that the judge deems relevant.") (Stevens, J.); id. at 764
("[W]ithout this provision . . . that makes the relevant sentencing
rules . . . mandatory and impose[s] binding requirement[s] on all
sentencing judges -- the [Guidelines] statute falls outside the
scope of Apprendi's requirement.") (Breyer, J.).
7
We express no opinion as to whether Booker error arising out of
the mandatory application of the Guidelines alone, without any
underlying Sixth Amendment violation, is constitutional in nature.
Cf. United States v. Haidley, 400 F.3d 642, 645 (8th Cir. 2005)
(declining to determine whether such error "was of constitutional
magnitude").

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rights. See Booker 125 S. Ct. at 756. Because the defendant was

"denied a federal constitutional right," Chapman 386 U.S. at 20,

the government has the burden of proving beyond a reasonable doubt

that the error did not affect the defendant's substantial rights.

Id. at 24; see also United States v. Pérez-Ruiz, 353 F.3d 1, 17

(1st Cir. 2003) (applying Chapman harmless error standard to

Apprendi violation). That is, we must be convinced that a lower

sentence would not have been imposed had the Guidelines been

advisory. This is an extremely difficult, but not impossible,

standard to meet. While the government, in light of the difficulty

of meeting its burden, has on occasion conceded to remand for

Booker error, see, e.g., United States v. Mercado Irizarry, -- F.3d

--, 2005 WL 825747, at *4 (1st Cir. Apr. 11, 2005), it has not done

so here.

2. Harmless error

The government contends that the sentencing judge's

belief that the Guidelines were mandatory did not contribute to the

defendant's sentence, but it has failed to meet its heavy burden of

proving this claim beyond a reasonable doubt. In support of its

position, the government refers to statements made by the

sentencing judge that suggest he was convinced of the factual basis

for the enhancements he applied. But even if, as the government

further alleges, each factor were supported by overwhelming

evidence, factual certainty alone would not be sufficient to show

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beyond a reasonable doubt that the judge, acting under an advisory

Guidelines system, would have applied the same sentence on the

basis of those factors. In the instant case, the government has

pointed to no statement or action of the sentencing judge that

would assure us that he would have imposed the same sentence in the

absence of mandatory Guidelines. To the contrary, our doubt on

this point is enhanced by the fact that, while the applicable

Guidelines constrained the sentencing judge to the upper margin of

sentences available under 21 U.S.C. § 841(b)(1)(C), the sentence he

chose was at the low end of that margin.

Finally, the government suggests that we may find the

Booker error harmless if we determine that the resulting sentence

is reasonable. See Booker, 125 S. Ct. at 767 ("The district

courts, while not bound by the Guidelines, must consult those

Guidelines and take them into account when sentencing. The courts

of appeals review sentencing decisions for unreasonableness.")

(internal citation omitted). This argument is without merit. The

reasonableness standard is to be used in reviewing sentences

imposed in compliance with Booker. See id. at 769 (suggesting that

if Booker error is harmless in cases not involving Sixth Amendment

violation, resulting sentence may only require reasonableness

review). The defendant's sentence did not comply with Booker.

Even if we determined that a 210 month sentence was reasonable

based on the facts considered at sentencing, we could not rule out

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the possibility that, under advisory Guidelines, the sentencing

judge would have imposed a lower reasonable sentence. Thus, we

hold that the government has failed to meet its burden of showing

that the Booker error was harmless.

3. Remedy

Two distinct options are available to remedy preserved

Booker error that has not been proven harmless. We can vacate the

sentence and remand for resentencing, or we can follow the lead of

the Second Circuit and remand for a determination of whether the

sentencing judge would have applied a different sentence under an

advisory Guidelines regime. See Crosby, 397 F.3d 116-18. Although

the Second Circuit deemed a Crosby remand "appropriate in order to

undertake a proper application of the plain error and harmless

error doctrines," id. at 117, it has only been applied in

unpreserved error cases, and appears to have been directed largely

at avoiding construing doubt about prejudice in the context of

plain error review against defendants, see United States v.

Williams, 399 F.3d 450, 457-61 (2d Cir. 2005).8 Nevertheless, the

Crosby remand does have the added benefits of avoiding the need to

8
We note that the Seventh Circuit has also developed a partial-
remand procedure for determining prejudice in cases of unpreserved
Booker error. See United States v. Paladino, 401 F.3d 471, 483-84
(7th Cir. 2005). It did not, however, apply that procedure to
remedy a finding that a preserved Booker error was not harmless,
opting instead to vacate the sentence and remand for resentencing.
See United States v. Schlifer, -- F.3d --, 2005 WL 774914, at *5
(7th Cir. Apr. 7, 2005).

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convene a resentencing hearing -- a much more administratively

taxing event than a sentencing judge's reevaluation on a Crosby

remand -- in cases where the sentencing judge determines that the

same sentence would have been imposed under advisory Guidelines.

Id. at 459. It also avoids, again in cases where the sentence

would not have changed, the quandary of whether aggravating or

mitigating facts that have arisen since the original sentencing can

be considered. Id.

Despite these advantages, we decline to engage in this

sort of limited remand for preserved Booker error when the

government has failed to prove harmlessness. We do not anticipate

that there will be so many such cases that reconvening sentencing

hearings will create a significant administrative burden. And,

while the problem of newly arisen sentencing factors is

significant, it will have to be addressed if a sentencing court

determines that a different sentence would have been imposed under

advisory Guidelines. Thus, we cannot be certain of avoiding the

problem with Crosby remands.

Given the limited benefit of Crosby remands in the

context of preserved error, we prefer to follow a more traditional

route. Although this is a case of first impression, roughly

analogous precedent exists in those cases where we have found that

the sentencing judge mistakenly believed that he was without

authority to depart from a Guidelines sentence. See United States

-28-
v. Delgado-Reyes, 245 F.3d 20 (1st Cir. 2001); Mariano v. United

States, 983 F.2d 1150 (1st Cir. 1993). In both cases, despite the

possibility that the judge might have opted not to depart, we

vacated the sentence and remanded for resentencing. See Delgado-

Reyes, 245 F.3d at 23-24 (remanding because sentencing judge

"seemed inclined" to accept joint stipulation that lower range

applied); Mariano, 983 F.2d at 1150 (remanding where we were

"unable confidently to say . . . that the judge's error was

harmless"). We will do the same here.

Because we remand for resentencing under Booker, we will

not consider the defendant's remaining claim that the facts found

by the sentencing judge are insufficient to support the

enhancements applied. The new sentence will, however, be subject

to reasonableness review should it be challenged in the future.

Booker, 125 S. Ct. at 765.

III.

For the reasons stated above, we affirm the defendant's

conviction, but vacate his sentence. We remand to the district

court for resentencing in accordance with the Sentencing Reform Act

of 1984, Pub. L. 98-473, Title II, §§ 211-238, 98 Stat. 1987

(1984), as altered in Booker.

Affirmed, Vacated and Remanded.

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