United States v. Navedo-Concepcion

United States Court of Appeals
For the First Circuit

No. 05-2301

UNITED STATES OF AMERICA,

Appellee,

v.

ISRAEL NAVEDO-CONCEPCIÓN,

Defendant, Appellant.

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

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

Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Hansen,* Senior Circuit Judge.

Peter Goldberger with whom Pamela A. Wilk was on brief for
appellant.
Jacqueline D. Novas, Assistant United States Attorney, United
States Attorney's Office, with whom H.S. García, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Senior Appellate Attorney in Charge, were on brief for appellee.

June 9, 2006

*
Of the Eighth Circuit, sitting by designation.
 BOUDIN, Chief Judge. On November 23, 1999, Israel

Navedo-Concepción ("Navedo"), along with seven other named co-

defendants, was indicted by a federal grand jury in Puerto Rico for

participating in a four-year conspiracy to possess more than five

kilograms of cocaine and more than one kilogram of heroin with the

intent to distribute. 21 U.S.C. §§ 846, 841(a) (2000). All of the

other named members of the alleged conspiracy eventually pled

guilty; Navedo did not.

At trial, the prosecution offered evidence that from 1995

to 1999, Navedo was part of a drug conspiracy in the La Perla

section of Old San Juan and that he regularly distributed cocaine

and heroin to both ordinary buyers and lower-level dealers who

would sell the drugs on his behalf. One of Navedo's dealers

testified that he sold cocaine and heroin for Navedo daily for

three years and that his sales for Navedo included four to six

kilograms of heroin per week. Less comprehensive testimony came

from a supplier to Navedo and one of his customers.

After a seven-day trial, a jury convicted Navedo of the

offense. The jury was charged that, to find Navedo guilty, it had

to find that he was personally responsible for the amounts

specified in the indictment, namely, more than five kilograms of

cocaine and more than one kilogram of heroin. At sentencing in

March 2002, the district judge said that he agreed that at

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"minimum," Navedo was responsible for this amount, which equated to

a guideline sentencing range of 121 to 151 months.

The judge sentenced Navedo to 151 months of imprisonment.

However, the judge gave no reason in open court for choosing this

sentence. The sentencing statute requires that at sentencing the

court "shall state in open court the reasons for its imposition of

the particular sentence," including its reasons for selecting a

particular point within the guideline range if the range exceeds 24

months. 18 U.S.C. § 3553(c) (2000).1

Navedo appealed to this court, attacking both his

conviction and sentence. In an unpublished opinion, we rejected

all claims of error, including attacks on the drug amount, save

that we agreed that, under section 3553(c), the district judge had

to give reasons for his choice of sentence. We remanded for

resentencing to allow him to do so.

On remand, the district court held a sentencing hearing

in August 2005 and listened to arguments from counsel as to the

proper sentence. It then noted that the guidelines were now

advisory, referred to the factors set forth in section 3553(a), and

reaffirmed the 151-month sentence, offering the following

explanation:

1
It appears that the district court did provide a written
statement of reasons for inclusion with the pre-sentence report,
but the transcript confirms that in open court the district court
had not stated reasons for its choice of sentence. The government
so conceded in the original appeal.

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 The court has determined in prior cases and
reaffirms it in this one that it will
generally heel to the guidelines imposing
criminal punishment. No doubt some criminal
defendants will be disappointed by this result
yet in the long run such an approach may be
the best way to develop a fair and consistent
sentencing scheme around the country for the
benefit of defendants, victims and the public.

We believe that the guidelines advisory ranges
best effectuate the sentencing reform act
statutory factors. Therefore, the court finds
that throughout the span of this conspiracy as
charged in the indictment the defendant,
Israel Navedo Concepcion was involved in the
distribution of the quantity of drugs involved
in the indictment. This was found by the jury
and I presided over the trial and agree with
that finding. The facts and circumstances of
the defendant[']s offense indicate a need to
protect the public because the offense
involved actual possession of controlled
substances and a serious threat to society.
His participation in the conspiracy and the
evidence presented during the trial justify a
sentence at the upper end of the advisory
guidelines.

The new sentencing occurred in August 2005, and so was

subject to United States v. Booker, 543 U.S. 220 (2005), decided in

January 2005. In his present appeal, Navedo first argues that the

district court misconstrued the legal standard governing post-

Booker sentences by treating the guideline range as presumptively

correct and giving the guidelines undue weight. Admittedly, the

resentencing occurred before this court's decision in United States

v. Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006) (en banc), which

gave our own view of the proper post-Booker approach to sentencing.

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 The district judge's statement at re-sentencing, quoted

above, could suggest that he viewed the guidelines as presumptively

determining the proper sentence (although the term "presumption"

was not used). The presumption language has been adopted by a

number of circuits,2 but in Jiménez-Beltre, we declined to adopt

it. 440 F.3d at 518. Nevertheless, our decision did treat the

guidelines as more than just "one factor among many," deemed them

the proper starting point for post-Booker sentencing, and said that

the proponent of a variance had to support it. Id. at 518-19.

In the resentencing, the district court explicitly

recognized that the guidelines were now advisory and allowed both

sides to make whatever arguments they wanted. It is debatable and

a matter of nuance how far the district court's emphasis on the

guidelines differs from our own in Jiménez-Beltre. Yet if we

thought that there was any serious possibility that a new

sentencing, enlightened by Jiménez-Beltre, would produce a better

result for Navedo, we would order a second remand.

This is not a realistic possibility. The most important

indicator is that the district judge, while stressing the

importance of the guidelines, has once again sentenced Navedo at

the top of the range, referring generally to the evidence presented

2
See, e.g., United States v. Williams, 436 F.3d 706, 708 (6th
Cir. 2006); United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006); United States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir.
2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005).

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at trial. The evidence provides a basis for the district court's

assessment, as we will see in the discussion that follows, and

there is little (and nothing new) that might sway the district

court in the opposite direction.

If the district court erred in expressing the post-Booker

algorithm, the variance was modest, consisting of a few ambiguous

phrases ("will generally heel"; guidelines "best effectuate") not

literally in conflict with Jiménez-Beltre. In the present case, we

regard the phrasings, if error at all, as harmless to anyone

advocating a lower sentence for Navedo. Asking the district court

to take note of Jiménez-Beltre and then resentence would, by

itself, accomplish nothing.

Navedo's second claim of error is that the district judge

failed adequately to explain his reasons for choosing a sentence at

the top of the guideline range or to explain (in Navedo's words)

"why no lower sentence would be 'sufficient' to accomplish the

[statutory] purposes of sentencing." The argument has two

different parts. The first one is, in essence, that the district

court's explanation is too opaque to permit understanding of the

reasons for the sentence or effective review of it.

As we explained in Jiménez-Beltre, we are prepared to

read what the district court did say in light of the record. See

440 F.3d at 519. The more obvious the reasons for a choice, the

less that needs to be explained. In this case, the district

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court's explicit concerns were the scope of the crime and the

potential for dangerousness. Beyond that, the district court

referred generally to "the evidence presented during the trial" as

justifying "a sentence at the upper end of the advisory

guidelines."

Turning to that evidence, Navedo was not convicted for a

couple of drug transactions, but for a four-year enterprise. He

was not just a street-level dealer: although not the senior figure

among the conspirators, he employed at least one subordinate dealer

and (if that dealer's testimony is fully credited) others as well.

Although Navedo had no prior convictions, he could--from the

evidence of the duration of the conspiracy, the seeming volume of

drugs, and his own role--be viewed by the judge as a significant

danger.

Thus, it is not difficult to see here what led the

district court to impose the maximum guideline sentence on Navedo:

volume, duration, and use of subordinates. Still, even where

fairly obvious, in the future the main factors ought to be

identified by the district court itself, eliminating the need for

guesswork. This is not a requirement for a lengthy or detailed

recitation or one addressing every claim and counter-argument;

rather, the reviewing court needs, and both parties deserve, a

specific explanation and not just a reference to the evidence.

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 The other aspect of Navedo's second claim–-that the

district court failed to explain why it did not give a lesser

sentence--is a different (and recurring) matter in such appeals.

Navedo points to the sentencing statute, which says, among other

things, that a sentence should be "not greater than necessary" to

carry out the purposes specified in the statute. 18 U.S.C. §

3553(a). This pronouncement says nothing about what explanation is

required from the district judge, but it is often cited by

defendants as if it were an admonition to be lenient (and to

explain a lack of leniency).

Section 3553(a) itself says that the sentence should be

"sufficient" to carry out the purposes of the sentencing statute,

and most of the specific purposes listed in the statute (section

3553(a)(2)) hardly connote less punishment.3 If the balanced

phrasing ("sufficient, but not greater than necessary") is more

than legislative boilerplate, its meaning has proved hard to

discern. The language was added without explanation at the last

minute. H.R. Conf. Rep. No. 98-1159, at 415 (1984), reprinted in

1984 U.S.C.C.A.N. 3710, 3711. A search of case law provides no

indication that courts have given it any clear functional

3
Respect for law, just punishment, adequate deterrence to
criminal conduct, and protection of the public certainly do not
suggest leniency; only one listed purpose--to provide the defendant
with medical care and training--has a softer tone. 18 U.S.C. §
3553(a)(2).

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significance. See United States v. Wilson, 350 F. Supp. 2d 910,

922-24 (D. Utah 2005).4

In all events, we do not think that the "not greater than

necessary" language requires as a general matter that a judge,

having explained why a sentence has been chosen, also explain why

some lighter sentence is inadequate. There is no mathematical

algorithm for the perfect sentence. The positive reasons for the

sentence are usually all anyone can do to explain why neither more

nor less has been imposed. If there are exceptions, this case is

hardly one of them.

This brings us to the third and most interesting claim of

error pressed on this appeal. The pre-sentence report, prepared

before the original sentencing, specified the amount of drugs

attributable to the defendant personally as the amount charged in

the indictment. This was unsurprising; the jury instructions

indicated that the jury had agreed with the attribution to Navedo

himself. In any event, the judge said that he agreed with this

assessment.

4
One might think that the "not greater than necessary"
language was added to make clear that a sentence should not be
increased for purposes other than those listed in the statute. But
the legislative history and statutory text indicate that the
obvious candidates for possible exclusion--retribution and
community sentiment--were not ruled out by Congress, but were
obliquely included within the stated purposes. Sen. Rep. No. 98-
225, at 75-76, reprinted in 1984 U.S.C.C.A.N. 3182, 3258-59; 18
U.S.C. § 3553(a)(2)(A).

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 Both in objections to the pre-sentence report and in the

sentencing proceedings, the defense objected to this determination

of amount, as a basis for sentencing, on the ground that the

witness who lent the most support for it–-Navedo's subordinate

dealer–-was wholly unreliable and that other evidence suggested a

far lower figure. Navedo argues that the district court never

addressed this claim, thereby violating the requirement that the

court rule on material disputes incident to sentencing. Fed. R.

Crim. P. 32(i)(3)(B).

There was indeed some doubt about the credibility of the

witness and about the reliability of the amount of drugs–-greatly

exceeding the indictment figures–-that he attributed personally to

Navedo. But the judge did not fail to rule on the amount properly

attributable to Navedo; he explicitly said he agreed with the jury

that the indictment amount was properly attributable to him.

This, says Navedo, was inadequate because "the extreme

generality of the district court's statement disregarded all of the

specifics advanced by the defense." But the district court did not

have to discuss the reasoning underpinning its factual finding as

to amount (e.g., inferences and credibility determinations). And,

whatever the doubts about the chief witness's accuracy, the

evidence did not rationally require a finding that the drug amount

was less than that found by the jury.

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 Defense counsel suggests on appeal that the jury found

only that the conspiracy embraced the quantities of drugs specified

in the indictment, whereas the district court found that Navedo

himself had possessed such an amount. In fact, under the

instructions, the jury determined that Navedo himself had possessed

the amount, either directly or constructively; he would in any case

be responsible under the guidelines for any amount foreseeable by

him. United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir.

2004).

Because the jury finding was not merely as to the general

amount embraced by the conspiracy, but specific to Navedo, Colon-

Solis, cited in Navedo's brief, is not on point. Nor is there much

reason to think, as the defense urges, that the smaller amounts of

drugs--testified to by one seller witness and one buyer witness who

dealt with Navedo–-should be treated as the maximum amount with

which he dealt, contrary to the testimony of the chief witness and

the view of both the jury and the district judge.

Navedo's final claim of error is that the sentence is

unreasonable under Booker. Such a claim, we have said, is

available under Booker even for a sentence within the guidelines.

Jiménez-Beltre, 440 F.3d at 517. But, in attacking an in-

guideline-range sentence as excessive, a defendant would usually

have to adduce fairly powerful mitigating reasons and persuade us

that the district judge was unreasonable in balancing pros and cons

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despite the latitude implicit in saying that a sentence must be

"reasonable."

Here, Navedo offers no such powerful reasons. One set of

reasons offered was Navedo's family circumstances, including his

adverse childhood experiences and the presence of two younger

children in his present household. Yet Navedo is also a man who

had a college degree, and, during the period of the conspiracy, two

seemingly legitimate jobs. He could easily be viewed as someone

who had overcome early difficulties and turned to crime for the

most unsavory of reasons.

The other main argument is that the other defendants, who

pled guilty, received much more modest sentences; the alleged

leader of the conspiracy, in particular, got only 63 months. But

Congress's concern with disparities was mainly national, United

States v. Smith, 445 F.3d 1, 5 (1st Cir. 2006), and focused on

those similarly situated; defendants who plead guilty often get

much lower sentences. The district judge was not required to

reduce Navedo's sentence simply because he--unlike the other

defendants--chose to go to trial.

We note, for the sake of completeness, that a gun and a

speed loader were seized from Navedo's home when he was arrested,

and that the dealer witness testified at trial that Navedo had

regularly carried a gun in connection with drug dealing. No

enhancement was granted on that account, the district judge did not

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mention it save to deny a belated request by the government to

consider it, and we have no reason to think that the judge relied

upon it in choosing his sentence.

Affirmed.

Dissent follows.

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 TORRUELLA, Circuit Judge (Dissenting). I am concerned

that we are, like a glacier in the ice age, inch by slow inch,

regressing to the same sentencing posture we assumed before the

Supreme Court decided Booker. This is exactly what I foresaw when

I entered my concurrence in Jiménez-Beltre. I for one, did not

tentatively sign on to Jiménez-Beltre to engage in such incremental

regressions, nor more importantly, do I believe that this is what

the Supreme Court had in mind when it struck down the mandatory

Guidelines regime. I think we should mean what we say: 1) the

sentencing guidelines are not a presumption; and 2) district judges

should be required to specify, not generalize, their reasoning on

sentencing, so that we are not required to speculate or second-

guess what they mean.

In this case the district judge declared that "it will

generally heel to the guidelines [when] imposing criminal

punishment." Although in Jiménez-Beltre, decided after the

sentence was imposed upon remand in this case, we held that

although the Guidelines should be considered as more than "just

another factor" in the sentencing calculus, we specifically

rejected any analytical framework that would afford to them

presumptively reasonable weight. On a scale between "just another

factor" and "presumptively reasonable," the language the district

court used to explain its understanding of the Guidelines in

sentencing Navedo cleaves far more closely to the forbidden

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inference. Language is the tool of our trade, and in this case it

is not just a matter of requiring a magic incantation. The

language used by the district court is at variance with Booker and

Jiménez-Beltre and should be corrected.

The majority does not order another remand because it

does not find "any serious possibility that a new sentencing,

enlightened by Jiménez-Beltre, would produce a better result for

Navedo." I respectfully disagree. Upon remand the district judge

imposed the same sentence despite the fact that Booker was decided

in the interim. In concluding that any error was harmless, the

majority finds persuasive the fact that the district judge imposed

the same sentence under the mandatory and advisory regimes.

However, if we view the district court's language upon re-

sentencing to be illustrative of its interpretation of Booker, we

must remember our own observation in Jiménez-Beltre, that

"[a]lthough making the guidelines 'presumptive' or 'per se

reasonable' does not make [the Guidelines] mandatory, it tends in

that direction." 440 F.3d at 518. In other words, because the

district court's stated intention to "generally heel to the

Guidelines" suggests that it considered them to be presumptively

reasonable, we should draw no conclusion from the fact that it

imposed the same sentence before and after Booker. I think it

quite possible that, with the benefit of Jiménez-Beltre, the

district court upon remand could impose a more favorable sentence.

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 I am also concerned that the district court failed

adequately to explain its reasons for sentencing Navedo at the top

of the Guidelines range. In Jiménez-Beltre, we held that "a

court's reasoning can often be inferred by comparing what was

argued by the parties or contained in the pre-sentence report with

what the judge did." Id. at 519. I continue to believe, as I

indicated in my concurring opinion in that case, that "the district

court's obligation to explain is not excused by our discretion to

discern its reasoning from the record on appeal." Id. at 521

(Torruella, J., concurring). This is so because, post-Booker, 18

U.S.C. § 3553(c) remains in force, requiring that the trial court,

"at the time of sentencing, shall state in open court the reasons

for its imposition of the particular sentence" (emphasis added),

including the reasons for sentencing at any particular point within

a Guidelines range that spans 24 months or more. Although the

majority in this case is satisfied that despite the lack of clear

explanation, "it is not difficult to see here what led the district

court to impose the maximum guideline sentence on Navedo," I am

very concerned that we are quickly moving toward a de facto

elimination of the explanation requirement. We have previously

held that the adequacy of the sentencing court's explanation under

§ 3553(c) is dependent upon "whether it sufficiently shows a

thoughtful exercise of the court's sentencing responsibility and a

degree of care and individualized attention appropriate to the

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solemnity of the sentencing task." United States v.

Vázquez-Molina, 389 F.3d 54, 59 (1st Cir. 2004), rev'd on other

grounds, Vázquez-Molina v. United States, 544 U.S. 946 (2005). The

generalized explanation offered by the district court in its

sentencing of Navedo seems to me to fall short of the Vázquez-

Molina standard. I am in agreement with the majority's prescription

that "in the future the main factors ought to be identified by the

district court itself, eliminating the need for guesswork."

However, I would go further than my esteemed colleagues to ensure

that such a result obtains at the district court level, by

remanding this case once again to the district court for a more

individualized and transparent articulation of its reasoning.

Of course, the role of the guidelines in the post-Booker

era will develop over time, and it is no doubt difficult to apply

the standards we have established to the wide range of

circumstances and judicial language that we regularly confront in

sentencing appeals. I think it important, however, especially in

the immediate aftermath of Jiménez-Beltre, to provide clear

guidance to district courts. I am concerned that the majority's

opinion in this case serves instead to muddy the waters.

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