Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2187
UNITED STATES OF AMERICA,
Appellee,
v.
JESÚS MANUEL DÍAZ CORREA,
Defendant, Appellant.
No. 04-2331
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE D. LÓPEZ-ENCARNACIÓN,
Defendant, Appellant.
No. 04-2369
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ M. MORALES-BORIA,
Defendant, Appellant.
No. 04-2420
UNITED STATES OF AMERICA,
Appellee,
v.
ZILKIA MARRERO-VARGAS,
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
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Juan J. Hernández López de Victoria on brief for appellant
Jesús M. Díaz Correa.
Guillermo A. Macari-Grillo on brief for appellant Jorge López-
Encarnacion.
Olga M. Shepard De Mari on brief for appellant José Morales-
Boria.
Lydia Lizarribar-Masini on brief for appellant Zilkia Marrero-
Vargas.
Germán A. Rieckehoff, Assistant U.S. Attorney, Nelson Pérez-
Sosa, Assistant U.S. Attorney, and H.S. Garcia, United States
Attorney, on brief for appellee.
June 28, 2006
Per Curiam. This is an appeal by four co-defendants--
Jesús Manuel Díaz Correa ("Díaz"), Jorge D. López-Encarnación
("López"), José M. Morales-Boria ("Morales"), and Zilkia Marrero-
Vargas ("Marrero")--from sentences imposed after they pled guilty
to conspiring to commit credit card fraud and other related
crimes. All defendants seek resentencing under United States v.
Booker, 543 U.S. 220 (2005). In addition, defendants Morales and
López challenge their sentences on other grounds. For the
reasons discussed below, we vacate all of the defendants'
sentences and remand for resentencing under Booker.
A. Booker Claims
As the government correctly concedes, all defendants
preserved their Booker arguments by arguing below that the
Guidelines were unconstitutional under Blakely v. Washington, 542
U.S. 296 (2004). See United States v. Antonakopoulos, 399 F.3d 68,
74 (1st Cir. 2005). Accordingly, we review defendants' Booker
claims for harmless error. United States v. Fornia-Castillo, 408
F.3d 52, 73 (1st Cir. 2005). Under that standard, "to avoid a
remand for resentencing under advisory Guidelines, 'the government
has the burden of proving . . . that the error did not affect the
defendant[s'] substantial rights. That is, we must be convinced
that a lower sentence would not have been imposed had the
Guidelines been advisory.'" Id. (quoting United States v. Vázquez-
-2-
Rivera, 407 F.3d 476, 490 (1st Cir.), cert. denied, 126 S. Ct. 279
(2005)).
Here, for all but one defendant,1 Díaz, the government
does not even attempt to show that the district court would have
imposed the same sentence under the advisory Guidelines and other
statutory factors. As to Díaz, the government argues that the
sentence was driven, not by the mandatory Guidelines, but by the
parties' stipulations in the plea agreement, which the court simply
adopted. But those stipulations, entered into pre-Booker, dealt
only with the Guidelines calculations and therefore provide no
insight into what the district court would have done if the
Guidelines were not mandatory and other factors were also
considered. Indeed, at sentencing, Díaz's counsel specifically
asked the district judge how he would sentence Díaz if the
Guidelines were declared unconstitutional, but the judge declined
to answer that hypothetical question. If anything, the fact that
the court adopted the parties' recommendation to sentence Díaz at
the bottom of the applicable Guidelines range is an indication that
1
We reject the government's argument that all defendants
except Díaz waived the benefit of the harmless error standard by
not expressly invoking it in their briefs. Nor did the defendants
waive their Booker claims by stipulating to certain Guidelines
calculations in their plea agreements, as the government further
contends. While such stipulations may be binding as to particular
Guidelines calculations, United States v. Serrano-Beauvaix, 400
F.3d 50, 54 (1st Cir.), cert. denied, 126 S. Ct. 106 (2005), they
do not preclude a defendant from seeking resentencing under a
scheme where the Guidelines calculations are not dispositive.
-3-
the court might have imposed an even lower sentence if it had the
discretion to do so. Vázquez-Rivera, 407 F.3d at 490. Under those
circumstances, we are not convinced that the district court would
have imposed the same sentence absent the mandatory nature of the
Guidelines. Cf. United States v. Benedetti, 433 F.3d 111, 119 (1st
Cir. 2005) (finding Booker error harmless where the court stated
that it would apply "exactly the same sentence" if the Guidelines
were unconstitutional). Similarly, as to the remaining defendants,
nothing in the record indicates that the sentencing judge would
have imposed the same sentences if he were not bound by the
Guidelines.
Accordingly, we conclude that the government has failed
to meet its burden of demonstrating harmless error and therefore
vacate and remand all defendants' sentences for resentencing under
Booker, using the protocols endorsed in United States v. Jiménez-
Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc). "[O]ur
decision to remand should not be read as a 'suggestion or a
prediction that [defendants'] sentence[s] will necessarily be
altered.' This is especially true 'where . . . the harmless error
test[] makes even a modest possibility of change enough to warrant
remand.'" United States v. Gómez-Rosario, 418 F.3d 90, 109 (1st
Cir. 2005) (citations omitted).
-4-
B. Other Claims
Because Morales will be resentenced under Booker, his
procedural challenges to his sentencing proceedings--that the court
refused to consider his illegible written objections to the
presentence report and refused to grant his motion to continue the
sentencing hearing--are moot and therefore need not be considered.
However, to guide the district court in resentencing Morales and
Lopez, we will address their substantive challenges to their
Guideline calculations. United States v. Green, 426 F.3d 64, 66
(1st Cir. 2005).
Morales's substantive challenge focuses on the
calculation of the amount of loss and number of victims
attributable to him for sentencing purposes. He claims that the
district court erred in basing his sentence on the total amount of
loss (more than $400,000) and total number of victims (between 10
and 50) attributable to the entire conspiracy, rather than on the
smaller quantities involved in the overt acts with which he was
charged or otherwise evidenced by materials provided in discovery.
The district court correctly rejected that argument and
held Morales to the Guidelines calculations that he stipulated to
in his plea agreement, which were expressly based on the $400,000
loss amount and the 10-to-50 victims. As we recently reiterated
in a decision involving another co-defendant in this same case,
"[o]rdinarily, a defendant can be held to such stipulations."
-5-
United States v. Rodríguez-González, 433 F.3d 165, 167 (1st Cir.
2005) (citing United States v. Teeter, 257 F.3d 14, 28 (1st Cir.
2001)). In this case, unlike in Rodríguez-González, there is no
claim that the defendant joined the conspiracy late, so the
principle that a late-joining member of a conspiracy is not
responsible, for sentencing purposes, for conduct of his co-
conspirators before he joined, id. at 168, has no bearing here.
Nor does the record here evidence any confusion on the judge's part
as to the applicable standard. Cf. id. at 168-69.
López argues that, in determining his criminal history
category, the district court erred in counting one of his prior
convictions. In reviewing this claim of Guidelines error, the
pre-Booker standards of review still apply; the district court's
interpretation of the Guidelines is reviewed de novo and its
related factual findings are reviewed for clear error. United
States v. Robinson, 433 F.3d 31, 35, 38 (1st Cir. 2005).
Specifically, López claims that his March 2003 state
conviction for attempting to cash a false check should not have
been counted in computing his criminal history score because that
conviction was "part of the instant offense," within the meaning of
U.S.S.G. § 4A.1.2. The district court rejected that argument,
reasoning that the prior conviction for check fraud was for a
different offense, more akin to bank fraud, than the instant
conviction for credit card fraud.
-6-
In so concluding, the district court does not appear to
have considered several other factors relevant to whether the prior
offense was "part of" the instant one, including whether the
offenses are "'substantially connected to each other by at least
one common factor, such as common victims, common accomplices,
common purpose, or similar modus operandi.'" United States v.
Collazo-Aponte, 216 F.3d 163, 203 (1st Cir. 2000) (quoting U.S.S.G.
§ 1B1.3 comment. (n.9(A)2)), vacated on other grounds, 532 U.S.
1036 (2001). While "[t]he nature of the offenses may also be a
relevant consideration," U.S.S.G. § 1B1.3 comment. (n.9(B)), it is
not dispositive, id. The district court cannot therefore rely on
that single factor without considering the other factors. Because
determining whether a prior offense is part of the instant offense
is "necessarily a fact-specific inquiry," id. (quotation marks and
citation omitted); see also Troncoso, 23 F.3d at 616, we leave that
determination to the district court in the first instance.
All of the appellants' sentences are vacated and the
matter is remanded to the district court for resentencing in
accordance with this opinion.
It is so ordered.
2
This application note--rather than application note 3, which
describes the circumstances under which prior sentences are
"related" to each other--is the one that applies here. See United
States v. Cyr, 337 F.3d 96, 99 n.1 (1st Cir. 2003); United States
v. Troncoso, 23 F.3d 612, 616 n.4 (1st Cir. 1994). The
government's reliance on application note 3 is therefore misplaced.
-7-