Not for Publication in West's Federal Reporter.
United States Court of Appeals
For the First Circuit
No. 06-1129
UNITED STATES OF AMERICA,
Appellee,
v.
EUTACIO CÁCERES-CABRERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella and Lynch, Circuit Judges,
and DiClerico,* District Judge.
Héctor L. Ramos Vega, with whom Joseph C. Laws, Jr. and
Patricia A. Garrity were on brief, for appellant.
Timothy R. Henwood, Assistant U.S. Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant U.S. Attorney, were on brief, for appellee.
March 15, 2007
*
Of the District of New Hampshire, sitting by designation.
LYNCH, Circuit Judge. Eutacio Cáceres-Cabrera was
convicted after trial of attempting to launder proceeds of a
specified unlawful activity. See 18 U.S.C. § 1956(a)(1)(B)(I),
(a)(2). The sums were forfeited. See id. § 982(a)(1). The
unlawful activity specified in the indictment and argued by the
prosecutor was drug dealing, and the amount of money the defendant
attempted to launder was $198,965 in cash.
At sentencing, the district court imposed a six-level
upward adjustment under U.S.S.G. § 2S1.1(b)(1), and sentenced
Cáceres-Cabrera to sixty-three months' imprisonment with three
years of supervised release.
Cáceres-Cabrera appeals his sentence, arguing the court
erred in imposing the six-level adjustment. Under U.S.S.G.
§ 2S1.1(b)(1) the adjustment may be imposed if, inter alia, the
government has demonstrated, by a preponderance of the evidence,
that the defendant knew or had reason to believe that the laundered
funds were narcotics proceeds.
The parties disagree over the basis for the district
court's ruling. The defendant argues that the ruling rested on an
error of law, and that the evidence is insufficient. He argues
that the district court erroneously imposed the enhancement solely
on the basis of the jury verdict, which did not establish Cáceres-
Cabrera's knowledge that the monies were drug proceeds. The
defendant correctly points out that it is not an element of the
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offense of conviction that the defendant know that the laundered
monies are proceeds of illicit drug transactions. 18 U.S.C.
§ 1956(a). Rather, conviction requires only that the defendant
know that the monies are proceeds of some illegal activity. Id.
§ 1956(a)(1); see also United States v. Cornier-Ortiz, 361 F.3d 29,
37 (1st Cir. 2004). Defense counsel also notes that the government
argued at closing that there was no burden on the government to
prove that Cáceres-Cabrera knew the money came from narcotics
proceeds, only that the money came from illegal activity.
The government rejoins that the court's result is based
on the jury verdict along with other evidence the government
produced at sentencing.1
The court asked for and heard a recitation of the
government's evidence supporting the six-level increase. After
that recitation, the court expressed, several times, considerable
doubt that the evidence was enough to meet the government's burden
of proving that the laundered monies were drug proceeds. The
government then switched tactics and argued that the jury, in
delivering the verdict of guilt, necessarily adopted the
government's theory that the funds were drug funds, despite the
1
The government also adds some arguments on appeal which
were not directly presented to the district court. One of those
arguments is that the defendant was untruthful on this very
subject. He gave one version of events when he testified as to
whether he knew the bag contained money and whether he knew the
source of the money, and gave another version to the Probation
Officer, as reflected in the P.S.R.
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defense's objections that this was not an element of the crime and
that the jury verdict form did not require any such finding.
The court then concluded, "[T]he adjustment has to be
made in light of the verdict." It is unclear whether the court was
implicitly ruling that the government's other evidence was
insufficient, as the court had earlier suggested; or that the
totality of the evidence, including the verdict, sufficed to meet
the government's burden; or that the result was compelled by the
jury verdict standing alone, regardless of the other evidence.
The sentencing transcript can be read to support either
side's argument as to the court's reasons. We think that the
proper course is to remand to the district court for clarification
and a further statement of reasons. See United States v. Jiménez-
Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc) ("[O]ur
emphasis in reviewing . . . claims [contesting the treatment of
various sentencing factors by the district court] will be on the
provision of a reasoned explanation . . . ."); see also United
States v. Catano, 65 F.3d 219, 231 (1st Cir. 1995) (remanding for
further explanation); United States v. Levy, 897 F.2d 596, 599 (1st
Cir. 1990) ("Where, as here, the record admits of possible
ambiguity, our practice is to remand for a limited purpose.").
Rather than retain jurisdiction, we remand for resentencing. See
United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990)
(remanding for resentencing where appellate court cannot tell the
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basis on which a four-level upward adjustment was given). Nothing
in this opinion should be taken as addressing the merits of the
issues raised by the defendant.
This appeal is terminated. If the defendant is
dissatisfied with the district court's actions after remand, he
should take a new appeal.
So ordered.
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