United States Court of Appeals
For the First Circuit
No. 06-1880
UNITED STATES OF AMERICA,
Appellee,
v.
ALTAGRACIA RAMOS-PAULINO,
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,
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.
Raymond L. Sanchez-Maceira, by appointment of the court, on
brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney (Chief,
Appellate Division), Rosa Emilia Rodríguez-Vélez, United States
Attorney, and on brief for appellee.
May 23, 2007
SELYA, Senior Circuit Judge. In this criminal appeal,
the defendant challenges both her conviction (on the ground of
instructional error) and her sentence (on the ground of a
guidelines-related error). After a thorough review of the record
and the applicable law, we affirm the defendant's conviction but
vacate her sentence. The tale follows.
We begin with the denouement. In April of 2005, a
federal grand jury charged defendant-appellant Altagracia Ramos-
Paulino with attempted transport and concealment of illegal aliens,
see 8 U.S.C. § 1324(a)(1), and trafficking in false identification
documents, see 18 U.S.C. § 1028(a)(2). These charges stemmed from
her involvement with Rafael Cintrón-Brea (Cintrón), a defrocked
police officer who became a government informant after pleading
guilty to an alien-smuggling charge.
The pertinent facts are as follows. The defendant first
met Cintrón in 2003. While she piously protests that they did not
pool their efforts to transport illegal aliens until January of
2005, Cintrón says that they collogued together from the start. We
need not resolve this conflict; for present purposes, it suffices
that, by all accounts, the joint enterprise was velivolant no later
than January of 2005. An event that is crucial to this appeal
occurred at that time: Cintrón reassured the defendant that,
notwithstanding his earlier arrest (of which she had recently
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become aware), she would not be brought to book for the criminal
activities that the two of them were planning to undertake.
This brings us to the offense conduct. Between January
and April of 2005, Cintrón and the defendant arranged the transport
of four illegal aliens. The defendant was the principal contact
for the aliens. With the assistance of a man named Domingo, she
gathered information about them, collected payments from them, and
obtained false identification documents for them. She then
transferred the money, the papers, and the aliens to Cintrón with
directions about which airline tickets should be purchased.
According to the plan, Cintrón was to purchase the
tickets and escort the aliens through San Juan's major
international airport, bypassing the usual security checkpoints.
Cintrón, however, was cooperating with the authorities, and the
defendant's activities led only to her arrest. An indictment
followed.
Pretrial proceedings were unremarkable. Cintrón was the
government's star witness at the trial. At the close of the
evidence, the defendant renewed her earlier request for an
entrapment instruction, claiming that Cintrón's assurances had
induced her to participate in the criminal venture. The district
court refused to instruct on entrapment, and the jury found the
defendant guilty on all counts.
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The district court continued the case for sentencing and
ordered the preparation of a presentence investigation report (PSI
Report). The court convened the disposition hearing on April 25,
2006. In making its guideline computations, the court adopted a
recommendation put forth in the PSI Report and applied a two-level
enhancement based on the defendant's role in the offenses of
conviction. See USSG §3B1.1(c). The adjusted offense level, when
combined with the defendant's criminal history category, yielded a
guideline sentencing range of 15-21 months. The court proceeded to
impose a sentence at the top of the range: 21 months. This timely
appeal ensued.
The defendant's claim of instructional error is easily
dispatched. She argues that she was entitled to a jury instruction
on entrapment because that was her main theory of defense and the
record contained adequate evidence to support it. We do not agree.
It is often said that a criminal defendant is entitled to
have the jury instructed on her theory of the case. But that
aphorism is not a universal truth: to warrant a jury instruction on
a specific theory of defense, the evidence adduced at trial, taken
in the light most flattering to the accused, must plausibly support
the theory. See United States v. Gamache, 156 F.3d 1, 9 (1st Cir.
1998); United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.
1988).
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Where, as here, a criminal defendant seasonably requests
an instruction on a particular theory of the case and the trial
court flatly refuses to submit that theory to the jury, our review
is plenary. See United States v. Nishnianidze, 342 F.3d 6, 17 (1st
Cir. 2003); Rodriguez, 858 F.2d at 812. This strain of appellate
review does not permit differential factfinding but, rather, turns
upon an inquiry into the sufficiency of the evidence in the case.
Rodriguez, 858 F.2d at 812. The burden is on the defendant, as the
proponent of the theory, to identify evidence adduced during the
trial that suffices to satisfy this standard. See id. at 814.
We have had occasion to apply this framework to efforts
to deploy an entrapment defense. When that defense is in issue,
the test of evidentiary sufficiency has two facets. See United
States v. Capelton, 350 F.3d 231, 242 (1st Cir. 2003). To warrant
an instruction on entrapment, the evidence must be sufficient to
support both a finding that the government wrongfully induced the
unlawful conduct and a finding that the defendant lacked a
predisposition to engage in that conduct. See, e.g., United States
v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994); Rodriguez, 858 F.2d
at 814. The defendant cannot pass this binary test.
Here, the claim of inducement rests exclusively on the
January 2005 conversation between Cintrón and the defendant. As
the defendant envisions it, Cintrón lured her into committing the
crime by assuring her that "nothing could happen to her because he
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was a Police Officer." Appellant's Br. at 11. In our view,
however, this solitary piece of evidence leaves the defendant well
short of the finish line.
We repeatedly have held that the simple solicitation of
a criminal act or the mere provision of an opportunity to engage in
one does not meet the threshold requirement for a finding of
wrongful inducement. See, e.g., Capelton, 350 F.3d at 243;
Gifford, 17 F.3d at 468. Empty promises that a crime, once
committed, will produce no adverse repercussions fall into the same
category. Telling a person that she will not be caught does not
lead her to believe that the conduct is lawful or that she will be
in jeopardy if she refuses to go along; it is, rather, simply a way
of making the opportunity to commit the crime more attractive.
Such promises, therefore, are not the stuff of which inducement can
be fashioned. See United States v. Evans, 924 F.2d 714, 717 (7th
Cir. 1991) (stating that inducement will lie only when the
government offers the "sorts of promises that would blind the
ordinary person to his legal duties"); cf. United States v. Davis,
15 F.3d 902, 909 (9th Cir. 1994) (explaining that law enforcement
officers "are not precluded from utilizing artifice and stealth" to
apprehend criminals, provided that "they merely afford
opportunities or facilities for the commission of the offense by
one predisposed or ready to commit it"). Inducement requires
something more — something akin to excessive pressure, threats, or
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the exploitation of an unfair advantage. See United States v.
Luisi, 482 F.3d 43, 58 (1st Cir. 2007); United States v. Gendron,
18 F.3d 955, 961 (1st Cir. 1994) (Breyer, C.J.).
In this instance, the defendant's version of her
conversation with Cintrón is uncontradicted. Taking what was said
at face value, a finding of inducement simply will not lie. On
that basis alone, the district court's unwillingness to instruct on
entrapment was entirely appropriate.1
We turn next to the defendant's claim of sentencing
error. The Supreme Court's landmark decision in United States v.
Booker, 543 U.S. 220, 245 (2005), rendered the federal sentencing
guidelines advisory. This does not mean, however, that the
guidelines are irrelevant in the post-Booker world. To the
contrary, they remain the starting point for most federal
sentencing determinations. See United States v. Pelletier, 469
F.3d 194, 203 (1st Cir. 2006); United States v. Jiménez-Beltre, 440
F.3d 514, 517 (1st Cir. 2006) (en banc), cert. denied, 127 S. Ct.
928 (2007). When an error in the calculation of a defendant's
guideline range affects or arguably affects the sentence imposed,
that error will require resentencing. See United States v. Gobbi,
1
Because the absence of any significantly probative evidence
of inducement is dispositive of the claim of instructional error,
we need not address the state of the record vis-à-vis
predisposition. See Capelton, 350 F.3d at 242-43 ("Given the
disjunctive nature of the [entrapment] test, we can fulfill our
appellate function by elaborating our disagreement on either
inducement or predisposition.").
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471 F.3d 302, 313 & n.7 (1st Cir. 2006); United States v.
Antonakopoulos, 399 F.3d 68, 81 (1st Cir. 2005).
We review a sentencing court's findings of fact for clear
error. See United States v. Misla-Aldarondo, 478 F.3d 52, 70 (1st
Cir. 2007); United States v. Dixon, 449 F.3d 194, 200-01 (1st Cir.
2006). We afford de novo review, however, to questions of law
involved in sentencing determinations. See United States v. Pho,
433 F.3d 53, 60-61 (1st Cir. 2006). A question about whether the
evidence is sufficient to support a particular guideline
determination is a question of law and, therefore, engenders de
novo review. See Dixon, 449 F.3d at 200; United States v.
Carrasco-Mateo, 389 F.3d 239, 243 (1st Cir. 2004).
In the case at hand, the defendant makes a rifle-shot
objection to one part of the lower court's sentencing algorithm.
This objection takes dead aim at the court's embrace of a two-level
upward adjustment for role in the offense recommended in the PSI
Report. The operative guideline provision applies to a defendant
who is shown by a preponderance of the evidence to be an
"organizer, leader, manager, or supervisor" of between one and five
other participants in the crime of conviction. USSG §3B1.1(c); see
United States v. Tejada Beltran, 50 F.3d 105, 110 (1st Cir. 1995).
The defendant's argument centers on the paucity of
evidence that she organized, led, managed, or supervised any other
participant in the criminal enterprise. Because the district court
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did not base the enhancement on specific findings as to whom the
defendant may have organized, led, managed, or supervised, we have
searched the record (including the PSI Report) in an endeavor to
identify any such underlings.
We have come up dry. The district court indicated at one
point its belief that the defendant oversaw Cintrón. Even if that
were true — and the record is murky on the point — such a finding
could not sustain the enhancement. For purposes of the
"participant" requirement of section 3B1.1(c), Cintrón (who was
acting undercover in 2005 as part of a government sting operation)
does not count. Neither a government agent nor anyone acting under
the direction of a government agent qualifies as a "participant"
for purposes of a role-in-the-offense enhancement. See USSG §3B1.1
cmt. n.1; see, e.g., United States v. Andreas, 216 F.3d 645, 679
(7th Cir. 2000); United States v. King, 21 F.3d 1302, 1304-05 (3d
Cir. 1994). By the same token, the aliens themselves cannot be
deemed participants for this purpose. See United States v.
Thiongo, 344 F.3d 55, 63 (1st Cir. 2003); see also USSG § 2L1.1
cmt. n.2.2
Beyond the defendant's relationship with Cintrón and her
dealings with the aliens themselves, there is little if any
2
It is conceivable, of course, that the aliens might qualify
as participants for the purpose of a role-in-the-offense
enhancement with respect to the "false document" count. See
Thiongo, 344 F.3d at 62-63. Here, however, the district court made
no findings to that effect.
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evidence indicating that she organized, led, managed, or supervised
any other participant. Although she worked hand in glove with the
mysterious Domingo, there is nothing to show either that he was her
subordinate in the chain of command or that she oversaw his
activities.
The absence of any such evidence is puzzling, but the
record contains a likely explanation. In fashioning the managerial
role enhancement, the district court seems to have gone in a
different direction. For aught that appears, the court based the
enhancement primarily on the defendant's control over the
activities of the criminal enterprise rather than over any
participants in it.
To justify this focus, the court pointed to language in
the guidelines discussing "a defendant who did not organize, lead,
manage, or supervise another participant, but who nevertheless
exercised management responsibility over the property, assets, or
activities of a criminal organization." USSG §3B1.1 cmt. n.2.
That description, the court said, "fit[] very well to this
defendant's role." Elaborating, the court observed that the
defendant was the principal contact for the smuggled aliens, that
she was apparently responsible for determining fees and accepting
payments, that she procured the false identification documents, and
that she had some influence over the scheduling of the transports.
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We appreciate the district court's concern. The problem
with this approach, however, is that the very application note
cited by the court makes it pellucid that the management of
criminal activities (as opposed to the management of criminal
actors) may ground an upward departure but not an upward role-in-
the-offense adjustment. See id. Although both may lead to similar
outcomes, there is an important structural distinction between
sentencing enhancements and sentencing departures. See United
States v. Cali, 87 F.3d 571, 576-79 (1st Cir. 1996); see also USSG
§1B1.1 cmt. n.1(E) (defining departures generally). For present
purposes, then, we are constrained by the unambiguous case law
holding that management of criminal activities, standing alone,
does not constitute a basis for a role-in-the-offense enhancement
under section 3B1.1. See, e.g., United States v. Harness, 180 F.3d
1232, 1235 (11th Cir. 1999); Cali, 87 F.3d at 876-79; United States
v. Greenfield, 44 F.3d 1141, 1146 (2d Cir. 1995). Consequently,
the district court erred in upwardly adjusting the defendant's
offense level on the basis of section 3B1.1(c).
Even under an advisory guidelines regime, the sentencing
court is obliged to calculate the guideline range correctly. See
Gobbi, 471 F.3d at 313 & n.7. An accurate calculation of the range
is particularly important where, as here, the district court
sentences the defendant at the range's apex. Accordingly, we have
no principled choice but to vacate the defendant's sentence and
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remand for resentencing consistent with this opinion. We leave
open the full gamut of possibilities — for example, the district
court, if it can identify a participant or participants under the
defendant's sway, may reimpose the managerial role enhancement; or
it may essay an upward departure for management of criminal
activities; or it may simply eschew any further embellishments and
impose what it deems to be a reasonable sentence. We take no view
either as to the course to be followed or as to the duration of the
sentence to be imposed. In the first instance, these are matters
for the sentencing court.
We need go no further. For the reasons elucidated above,
we affirm the defendant's conviction, vacate her sentence, and
remand for resentencing consistent with this opinion.
Affirmed in part; vacated in part; and remanded for resentencing.
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