United States v. Jaca-Nazario

United States Court of Appeals
For the First Circuit

No. 05-2114

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS JACA-NAZARIO,

Defendant, Appellant.

No. 06-2157

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS JACA-NAZARIO,

Defendant, Appellant.

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

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Howard, Circuit Judge,

Selya, Senior Circuit Judge,

and Dyk,* Circuit Judge.

*
Of the Federal Circuit, sitting by designation.
 Maria H. Sandoval for appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief Appellate
Division, Jacqueline D. Novas, Assistant United States Attorney,
and Thomas F. Klumper, Assistant United States Attorney, were on
brief, for appellee.

March 27, 2008
 HOWARD, Circuit Judge. Carlos Jaca Nazario ("Jaca") pled

guilty to conspiring to transport cocaine in two separate criminal

cases. He was sentenced by a different judge for each plea. He

makes a variety of claims on appeal, some directed at one sentence,

some at the other, and some at both. Because we find that the

district court erred in its determination of whether the conduct

underlying each case was, in the parlance of the federal sentencing

guidelines, "relevant conduct" as to the sentencing of the other,

we vacate both sentences and remand for resentencing.

Jaca pled guilty in both proceedings; we therefore recite

the facts as contained in the presentence reports (PSRs),

sentencing memoranda, and transcripts of the sentencing hearings.

See United States v. Marks, 365 F.3d 101, 101 (1st Cir. 2004). We

reserve discussion of some facts relevant to particular arguments.

Jaca was a taxi driver who had connections among the

workers at Marin airport in San Juan, Puerto Rico. He would take

bags filled with cocaine and through this network of accomplices

ensure that they were put on airplanes bound for the mainland

United States. This operation came under scrutiny by two separate

investigations at around the same time.

From February to July, 2003, Jaca transported what he

believed to be cocaine for a woman named Vanessa. Vanessa was

cooperating with authorities; the cocaine was a dummy. Jaca and

his crew placed twenty kilos of this sham cocaine on a flight in

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February, 2003. Federal agents in charge of the investigation

contrived to have that shipment "lost," enabling some hardball

tactics by Vanessa, about which we will say more later. A

"successful" shipment of another twenty kilos followed in March,

2003. In July, Jaca twice handled more "cocaine" for Vanessa; both

attempts failed only because an accomplice did not load the sham

cocaine on the airplane. For the sake of clarity, we refer to

these activities collectively as "the sham cocaine smuggling."

The day after the last attempt to ship cocaine for

Vanessa, Jaca and his crew placed thirty kilos of real cocaine on

an airplane bound for New York as part of a conspiracy to move a

large quantity of cocaine through Puerto Rico to the mainland.

Neither Vanessa nor the government were involved. We will refer to

this conduct as "the real cocaine smuggling."

An indictment for the real cocaine smuggling issued in

September, 2003; it charged some of the other conspirators with

moving as much as 153 kilos of cocaine. The indictment for the

sham cocaine smuggling issued in March, 2004.

Different district court judges presided over the two

cases. Jaca moved to consolidate the cases, but the motion was

denied; he was the only defendant common to both. After refusing

a plea deal of eleven years for both cases, Jaca eventually made

straight guilty pleas. He moved, again unsuccessfully, to

consolidate the two sentencing hearings.

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 Jaca entered a guilty plea for his role in the sham

cocaine smuggling three days before trial was to begin. At

sentencing, he was found to have participated in the transport of

not less than 50 but not more than 150 kilos of cocaine. With

acceptance of responsibility and a "safety valve" reduction in

offense level, he was sentenced to 121 months, the bottom of the

appropriate guideline sentencing range of 121 to 151 months. In

issuing this sentence ("the first sentence"), the district court

expressly declined to consider the pending charges in the other

indictment.

The indictment for the real cocaine smuggling likewise

ended in a guilty plea. The district court declined to consider

the sham cocaine smuggling as "relevant conduct" in calculating the

total quantity of drugs for sentencing purposes. The court,

however, did give Jaca the benefit of the "safety valve" reduction,

sentencing him ("the second sentence") to eighty-seven months. The

court also exercised its discretion to pronounce a partially

concurrent sentence. See U.S.S.G. § 5G1.3. In order to credit

Jaca for time already served, the second sentence was deemed to

have run concurrently with the first sentence from the date of

Jaca's incarceration until the date of the second sentencing --

around eleven months. The remainder of the second sentence was to

run consecutively to the first sentence. The second sentence

therefore would start, run for around eleven months concurrently

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with the first, and then stop for a little more than nine years,

only to start again when the first sentence was finished.

Jaca contends: (1) that the district court erred by not

considering the sham cocaine smuggling to be "relevant conduct" in

the second sentence; (2) that because the sham cocaine smuggling

was "relevant conduct" in the second sentence, the district court

erred in not imposing a fully concurrent sentence as required by

U.S.S.G. § 5G1.3(b); (3) that the second sentence constitutes a

"suspended sentence" expressly forbidden by 21 U.S.C. §

841(b)(1)(A); (4) that the district court erred in not considering

a sentencing entrapment argument, or that, to the extent it did

consider the argument, the district court erred in not finding

sentencing entrapment; and (5) that the government refused to move

for a one-level reduction in bad faith, and therefore the district

court should have granted the reduction without the motion.1 We

will examine these in turn.

I. Relevant Conduct

On appeal, Jaca maintains that the sham cocaine smuggling

was "relevant conduct" to the second sentence, and therefore the

second sentence should run entirely concurrent with the first.

This argument necessarily has two parts: first, that the conduct

was "relevant" under U.S.S.G. § 1B1.3; and second, that concurrent

1
Because we remand for resentencing we have no need to consider
Jaca's additional Due Process argument.

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sentencing was mandated under U.S.S.G. § 5G1.3(b). The first part

of this argument has independent force and requires remand for

resentencing. We decline to reach the second question, noting only

that the second part of this argument may depend on which version

of the Guidelines is used for sentencing.

The threshold question is whether Jaca's conduct in the

sham cocaine smuggling was relevant to the second sentence in the

required sense. Since Jaca raised the argument below we review for

clear error. United States v. Joost, 133 F.3d 125, 132 (1st Cir.

1998).

In sentencing Jaca for the real cocaine smuggling, the

district court treated the sham cocaine smuggling as "relevant

conduct" for some purposes but not for others. We cannot accept

this approach. The district court granted a dispensation from the

mandatory minimum sentence under the "safety valve" provision,

U.S.S.G § 5C1.2. But that provision benefits only defendants who

have "not more than 1 criminal history point." U.S.S.G. §

5C1.2(a)(1). Jaca's prior sentencing in the sham cocaine smuggling

would have yielded more than one criminal history point; he could

not then be treated as a first offender in the second sentencing.

This apparent incongruity is resolved, however, by the PSR for the

real cocaine smuggling. It recommended that Jaca receive the

safety valve provision for the second sentence as well as the

first, because the sham cocaine smuggling was "conduct that is part

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of relevant conduct for this offense." Indeed, the district court

could only grant the safety valve a second time if it considered

this "relevant conduct" under § 1B1.3.2 But § 1B1.3 requires that

all relevant conduct be taken into account in sentencing, so the

drug quantities should have been aggregated.3 In fact, the

government made this argument, unsuccessfully, in its objection to

the second PSR, requesting that the amounts be aggregated and the

Base Offense Level thereby increased. Because the district court

evidently considered the sham cocaine smuggling to be "relevant

conduct" for the purposes of granting the second "safety valve,"

but did not consider it "relevant conduct" for the purposes of

calculating offense level, we must vacate Jaca's second sentence.

The parties have also briefed the underlying question of

whether the sham cocaine smuggling is indeed "relevant conduct" to

2
Application Note 1 to U.S.S.G. § 5C1.2(a)(1) points to § 4A1.1 for
the calculation of criminal history points. That section requires
the sentencing judge to add points for "prior sentences." The
calculation is mechanical; if the first sentence is a "prior
sentence," criminal history points must be added for it. However,
Application Note 1 to § 4A1.1 contains a cross-reference to the
definition of "prior sentence" in § 4A1.2(a). That definition
excludes any "sentence for conduct that is part of the instant
offense" and goes on to elaborate, "conduct that is part of the
instant offense means conduct that is relevant conduct under the
provisions of § 1B1.3 (Relevant Conduct)." U.S.S.G. § 4A1.2. cmt.
n.1. None of the other exclusions to the definition come close to
applicability in this case. The district court, then, impliedly
made a finding of relevance in granting the safety valve.
3
See United States v. Caraballo, 200 F.3d 20, 25 (1st Cir. 1999)
(interpreting U.S.S.G. § 1B1.3 as mandatory language requiring the
consideration of all relevant conduct).

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the second sentence. We conclude that the two offenses do relate

to the same course of conduct, and therefore vacate both sentences

and remand so that each can properly account for this relevant

conduct under U.S.S.G. § 1B1.3.

Determining whether the sham cocaine smuggling is

"relevant conduct" for the purposes of the second sentence takes us

on a hopscotch path through the Guidelines. Section 1B1.3 of the

Guidelines defines "relevant conduct." Subsection (a)(2) applies

to "offenses . . . for which § 3D1.2(d) would require grouping of

multiple counts" and makes relevant conduct "all acts and omissions

. . . that were part of the same course of conduct or common scheme

or plan." U.S.S.G. § 1B1.3(a)(2) (2002). Section 3D1.2(d)

includes a list of provisions to which it applies.4 Section 2D1.1

of the Guidelines, under which Jaca was sentenced, is included in

this list. The sham cocaine smuggling, then, is relevant conduct

if it is part of the same course of conduct or a common scheme or

plan. Closer inspection reveals that Jaca's various crimes are

part of the same course of conduct.

For offenses to qualify as the same course of conduct,

they must be "sufficiently connected or related . . . to warrant

the conclusion that they are part of a single episode, spree, or

4
Application Note 6 to this Guideline indicates that "conspiracy .
. . to commit an offense is covered under subsection (d) if the
offense that is the object of the conspiracy . . . is covered under
subsection (d)." § 3D1.2, cmt. n.6 (2002).

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ongoing series of offenses." U.S.S.G. § 1B1.3, cmt. n.9(B).

Application Note 9 further directs the court to consider "the

degree of similarity between the two offenses, the regularity

(repetitions) of the offenses, and the time interval between the

two offenses. When one of the above factors is absent, a stronger

presence of at least one other factor is required." Id. See

United States v. Mallett, 496 F.3d 798, 803 (7th Cir. 2007)

(upholding district court's finding that possessing the same drug

and the same drug paraphernalia on two occasions eight months apart

constituted same course of conduct); United States v. Wright, 496

F.3d 371, 380 (5th Cir. 2007) (upholding district court's finding

that two similar transactions separated by seventeen days

constituted same course of conduct).

Jaca and his crew used the same means to place similar

quantities of the same drug on the same airlines out of the same

airport. And the last attempt in the sting occurred the day before

the conduct at issue in the second sentence. While the regularity

factor is somewhat attenuated, the strength of the similarity and

temporality factors more than compensates. The district court,

therefore, correctly considered the sham cocaine smuggling to be

relevant conduct in the second sentence when it granted the "safety

valve." Further, because the test for "same course of conduct" is

by its terms symmetrical, the activity in the real cocaine

smuggling must have been relevant conduct for the purposes of the

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first sentence. The contrary finding of the first sentencing court

was, thus, clearly erroneous. We must therefore vacate both

sentences and remand for resentencing.5

II. Concurrent or Partially Concurrent Sentencing

Jaca argues that the district court erred in applying

U.S.S.G. § 5G1.3(c), which allows discretion in choosing a

concurrent, partially concurrent, or consecutive sentence. He

claims that instead U.S.S.G. § 5G1.3(b) mandates a fully concurrent

sentence. Because we remand for resentencing, we consider the

argument only long enough to note that this Guideline changed after

Jaca committed these crimes but before he was sentenced for them.

See United States v. Lino, 493 F.3d 41, 45 (1st Cir. 2007). We

expect that the Ex Post Facto Clause requires application of the

older Guidelines if those would be more lenient. See U.S.S.G. §

1B1.11(b)(1) ("If the . . . use of the Guidelines Manual in effect

on the date that the defendant is sentenced would violate the ex

post facto clause of the United States Constitution, the court

shall use the Guidelines Manual in effect on the date that the

offense of conviction was committed."); United States v.

Harotunian, 920 F.2d 1040, 1043 (1st Cir. 1990).

5
On appeal, Jaca has confined his relevant conduct argument largely
to the second occurring sentence. However, he has objected to the
failure to consolidate the two sentencing proceedings. We agree
that this failure was an abuse of discretion. Accordingly, we will
vacate both sentences and remand both cases for resentencing before
a single district judge, who will be in the best position to assess
the relevant sentencing considerations.

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 III. Suspended Sentence

Although we vacate both sentences, we nonetheless address

Jaca's "suspended sentence" argument for what guidance our comments

may afford the district court on remand. Convictions such as

Jaca's may not result in suspended sentences.6 Jaca's second

sentence itself is not unclear; the sole question is whether it is

a suspended sentence. We review questions of statutory

interpretation de novo. United States v. Frechette, 456 F.3d 1, 7

(1st Cir. 2006). "By common definition a 'suspended sentence' is

a definite sentence postponed so that the defendant is not required

to serve his time in prison unless he commits another crime or

violates some court-imposed condition during a probationary

period." United States v. Gajdik, 292 F.3d 555, 558 (7th Cir.

2002); see also Black's Law Dictionary 1394 (8th ed. 2004)

(defining "suspended sentence" as "[a] sentence postponed so that

the defendant is not required to serve time unless he or she

commits another crime or violates some other court-imposed

condition"). Here, the district court allowed Jaca credit against

the second sentence for time he had served before the second

sentencing. The second sentence was retroactively deemed to have

begun at the time the first sentence began, to have been served

6
The relevant language is, "Notwithstanding any other provision of
law, the court shall not place on probation or suspend the sentence
of any person sentenced under this subparagraph." 21 U.S.C. § 841
(b)(1)(A).

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partially concurrently therewith until the date of the second

sentencing; the remainder of the second sentence was to be served

consecutively to the first sentence. At no time would Jaca be out

of custody: The balance of the second sentence would commence

automatically when the first sentence ended. This type of

sentence, even if unusual, does not constitute a suspended

sentence.

IV. Sentencing Entrapment

Jaca next contends that the district court erred in

rejecting the sentencing entrapment argument. Because we find that

Jaca was not improperly induced to commit more, or more serious,

crimes than those to which he was already predisposed, we agree

with the district court that no improper manipulation occurred.

The following additional facts provide the basis of Jaca's

sentencing entrapment argument.

Investigators working with Vanessa arranged for the first

shipment of sham cocaine to be "lost." From this, more urgency was

manufactured for subsequent shipments -- Vanessa frequently told

Jaca that she would be held responsible for the "lost" shipment.

The transcripts of recorded conversations show Vanessa telling Jaca

that she feared for her life. Jaca at one point responded that he

was losing sleep over the situation. He now argues that this kind

of pressure -- that he had to help Vanessa lest she be killed --

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overbore his will and caused him to commit additional offenses

which then drove up his sentence.

We have used the terms "sentencing entrapment" and

"sentencing factor manipulation" interchangeably. United States v.

Lora, 129 F. Supp. 2d 77, 89 (D. Mass. 2001) (citing United States

v. Woods, 210 F.3d 70, 75 (1st Cir. 2000)) (discussing varying use

of the terms among the circuits). In sentencing factor

manipulation cases, "the burden of proof is upon the defendant to

show that he is entitled to a reduction." United States v.

Montoya, 62 F.3d 1, 4 (1st Cir. 1995) (citation omitted). "The

district court's fact findings on this issue, as on other fact

questions, are subject to the clearly erroneous standard." Id.

Because this is such a fact-bound inquiry, we extend deference even

to the district court's conclusion about whether or not the

government has behaved outrageously or intolerably. Id. (stating

that such a conclusion is "not lightly to be disregarded").

Jaca presses this argument two ways. First, he claims,

it was error for the district court to refuse to entertain the

sentencing manipulation claim. Second, to the extent that the

district court did entertain the claim, it erred in denying relief.

Neither avenue leads anywhere.

The record of the relevant sentencing hearing reveals

that the district court did consider the argument, but rejected it.

Jaca's relies on the statement by the district judge that, "I'm not

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going to determine that in this. I have all the tapes there, and

each one interprets the tapes whichever way they think, and I'm not

going to get into any issue concerning whether the government has

misconduct or not." We are invited to read this comment as a

refusal even to entertain the argument. But a little later in the

hearing, Jaca's counsel stated, "[I]f you reject our sentencing

manipulation argument, and I understand the court has," and the

court responded, "I have." Later, the court said to the

government, "That was argument concerning the manipulation . . .

which I am not accepting." Thus, the district court did consider

the argument enough to reject it.

The merits of the sentencing entrapment argument itself

are similarly unconvincing. An undercover operation may carry with

it a risk that law enforcement will unduly pressure a suspect to

commit crimes to which he is not predisposed. But sentencing

entrapment does not occur unless "law enforcement agents venture

outside the scope of legitimate investigation and engage in

extraordinary misconduct that improperly enlarges the scope or

scale of the crime." United States v. Barbour, 393 F.3d 82, 86

(1st Cir. 2004). To establish a claim, the defendant must show

that "the agents overpowered the free will of the defendant and

caused him to commit a more serious offense than he was predisposed

to commit." Id. Courts must focus primarily on the behavior and

motives of the government. See United States v. Gibbens, 25 F.3d

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28, 31 (1st Cir. 1994) ("When an accusation of sentencing factor

manipulation surfaces, the judicial gaze should, in the usual case,

focus primarily -- though not necessarily exclusively -- on the

government's conduct and motives."). With that focus the

sentencing court must determine whether the government has

committed "extraordinary misconduct." As a secondary inquiry, the

court must consider the predisposition of the defendant to commit

the crimes.

Emotional pressure is one possible basis for a finding of

entrapment at trial, and therefore presumably also could be an

adequate basis in a sentencing entrapment setting as well. In a

case relied on by Jaca, United States v. Montanez, 105 F.3d 36, 37

(1st Cir. 1997), we held that a defendant was entitled to a jury

instruction that included appeals to sympathy as one kind of

improper government inducement to commit a crime. In that case,

the government informant was a woman who had lived with the

defendant for a time. She later told him that if he did not

acquire crack for her to resell, she might lose custody of her

children. The pressure from Vanessa on Jaca is similar -- the

transcripts of the surveillance tapes show how much she played up

fears for her life.7

7
Although Vanessa, a confidential informant for the government,
certainly knew that the shipments had been intercepted by the
authorities rather than "lost," she pressured Jaca, saying, for
example, "I'm going to get my head off when those kilos don't
appear."

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 Assuming, arguendo, that Vanessa's conduct is

attributable to the government, the government may have strayed

from its usual bounds in exerting this degree of emotional pressure

on Jaca. This, then, is more than a "garden variety" claim of

manipulation. Montoya, 62 F.3d at 4 ("[G]arden variety

manipulation claims are largely a waste of time."). But Jaca's

reliance on Montanez is nevertheless misplaced. The differing

posture of this case demands a different result. Montanez

concerned the failure to give the correct instruction to a jury at

trial. Here, we review the district court's rejection of a

sentencing entrapment argument. The deference we accord the

district court precludes a determination that the judge, in effect,

failed to give such an instruction to himself (or failed to heed

it). This finding seems especially supportable since Montanez

concerned a defendant with a personal relationship with the person

playing on his sympathies. Because Jaca's relationship with

Vanessa is apparently a mere business relationship, this kind of

pressure will not be as effective.

Sentencing factor manipulation may also rest on a finding

of improper government motive. There is no evidence that the

government had Jaca make the extra shipments for an improper

purpose. It is Jaca's burden to present such evidence, and he has

not done so.

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 When we find the government's behavior troubling, we

examine as well the predisposition of the defendant.8 This inquiry

is secondary in part because the defendant has already been found

guilty of the crimes, and in the context of sentencing entrapment

is only arguing about degree or number of crimes. "Having crossed

the reasonably bright line between guilt and innocence, such a

defendant's criminal inclination has already been established, and

the extent of the crime is more likely to be a matter of

opportunity than of scruple." Montoya, 62 F.3d at 4. Evidence in

the record indicates that Jaca had engaged many times in similar

smuggling transactions.9 No evidence shows any reluctance on

Jaca's part to perform the additional shipments, let alone that the

pressure from Vanessa overbore his will.

8
Indeed, a finding that the defendant was predisposed to commit the
crimes charged may overcome even a finding of improper motive. See
United States v. Fontes, 415 F.3d 174, 181 (1st Cir. 2005)
(predisposition to sell crack prevented finding of sentencing
factor manipulation even when law enforcement "basically admitted"
it demanded crack instead of powder only for a higher sentence).
9
For example, Jaca indicated to Vanessa he had moved drugs on a
particular flight seven times previously. We are mindful that drug
smugglers, no less than other businessmen, might exaggerate the
scope of their operations to attract new clients. But the
representations, even if false, convey predisposition, even
eagerness, to commit these crimes. Additionally, the evidence
shows a group of men accustomed to working together on transactions
of this sort. Jaca says as much in one conversation excerpted in
his own brief: "I'm calling them, we've been in communication all
the time, also, 'cause of that, 'cause we've been together all the
time, you understand me? We're . . . we're a group." (ellipsis in
original). The district court was also aware that Jaca was under
indictment for moving a shipment larger than any of those at issue
here.

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 V. Acceptance of Responsibility

Jaca contends that in the first sentencing the government

refused in bad faith to move for the "third level," resulting in

only a two-level downward adjustment for acceptance of

responsibility. We will set aside such a determination only if it

clearly erroneous. United States v. Mateo-Espejo, 426 F.3d 508,

510 (1st Cir. 2005).

The third level is awarded to recognize that the

defendant has served justice by "permitting the government to avoid

preparing for trial and permitting the government and the court to

allocate their resources efficiently." U.S.S.G. § 3E1.1(b). The

district court indicated that it could not grant the third level

without a motion from the government.10 Jaca contends that after

United States v. Booker, 543 U.S. 220 (2005), this restriction is

just as "advisory" as the rest of the Guidelines.11 Without

10
Application Note 6 to this Guideline states, "Because the
Government is in the best position to determine whether the
defendant has assisted authorities in a manner that avoids
preparing for trial, and adjustment . . . may only be granted upon
a formal motion by the Government." U.S.S.G. § 3E1.1 cmt. n.6.
11
Other circuits have held that this mandate survives Booker. See
United States v. Garcia-Morena, 214 Fed. Appx. 134, 138 (3rd Cir.
2007) (unpublished opinion); United States v. Sloley, 464 F.3d 355,
360 (2d Cir. 2006); United States v. Espinoza-Cano, 456 F.3d 1126,
1135 (9th Cir. 2006) ("[T]he PROTECT Act makes the third level
reduction subject to the discretion of the government."); United
States v. Smith, 429 F.3d 620, 628 (6th Cir. 2005) ("[E]ven after
Booker, a district court consulting the guidelines remains
constrained in awarding a § 3E1.1(b) reduction absent a motion by
the government."); United States v. Moreno-Trevino, 432 F.3d 1181,
1186 (10th Cir. 2005) (courts have authority to grant the reduction

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deciding that question, we note that the district court also found

that the government had not withheld the motion in bad faith.

Here, Jaca entered his guilty plea three days before trial was

scheduled to begin. The district court heard from the government

that it had indeed prepared for trial. Although, consistent with

its discretion, the district court is free to reconsider this

aspect of its sentencing when it entertains this case on remand, we

do not believe its determination was clearly erroneous.

Carlos Jaca Nazario's sentences are vacated, and the

cases are remanded for a consolidated resentencing before a single

district judge consistent with this opinion.

sua sponte only when the government's refusal to move for it is
based on an impermissible motive or has no rational basis).

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