United States v. Bucci

United States Court of Appeals
For the First Circuit

No. 07-2376

UNITED STATES OF AMERICA,

Appellee,

v.

SEAN BUCCI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]

Before

Howard, Selya, and Ebel, *
Circuit Judges.

Kimberly Homan for appellant.
Sangita K. Rao, Attorney, Criminal Division, Appellate
Section, United States Department of Justice, with whom
Michael J. Sullivan, United States Attorney, and Peter K.
Levitt, Assistant United States Attorney, were on brief for
appellee.

September 11, 2009

*
Of the Tenth Circuit, “sitting by designation”.
 EBEL, Circuit Judge. In this direct criminal appeal,

Sean Bucci challenges his sixteen convictions for drug

trafficking, money laundering and tax evasion, his resulting

151-month prison sentence, and a forfeiture order. Having

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,

we AFFIRM.

I. BACKGROUND

The evidence presented at trial established that Bucci’s

co-defendant Anthony Belmonte sold Bucci approximately 300

to 350 pounds of marijuana eight or nine times each year,

over the course of three and one-half years. Following a

nine-month investigation, the United States charged Bucci

with sixteen counts of drug trafficking, money laundering

and tax evasion. At trial, Bucci acknowledged that he was

a marijuana dealer, but disputed the amount of marijuana

with which he was charged. The jury found Bucci guilty on

all sixteen charges and specifically found that the charged

drug-trafficking conspiracy involved over 1,000 kilograms of

marijuana. The jury also returned several special

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forfeiture verdicts against Bucci. 1 The district court then

sentenced Bucci to 151 months in prison.

II. DISCUSSION

A. Challenges to the indictments

1. Vindictive prosecution

The United States initially indicted Bucci, along with

Belmonte and another co-defendant, Darren Martin, on two

drug-trafficking charges: 1) conspiring to possess at least

100 kilograms of marijuana with the intent to distribute, in

violation of 21 U.S.C. § 846; and 2) possessing at least 100

kilograms of marijuana with the intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii). The

indictment also charged that any of Bucci’s property that

represented proceeds from his drug-trafficking offenses was

forfeitable under 21 U.S.C. § 853.

A year later, in August 2004, Bucci started a website,

whosarat.com, where individuals could post information about

government informants. Six months after Bucci started this

website, the Government, on February 3, 2005, filed a

superseding indictment which charged only Bucci and Martin

1
Specifically, the jury found $2 million forfeitable as
drug proceeds, and $700,000 forfeitable as part of Bucci’s
money laundering conspiracy. In addition, the jury found
that Bucci’s home, vehicle, boat, and the funds in three of
his bank accounts and an investment account should all be
forfeited.

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with the same two drug-trafficking counts, but increased the

amount of marijuana charged in the alleged conspiracy from

100 to at least 1000 kilograms. The increased amount of

marijuana charged raised the statutory mandatory minimum

sentence Bucci faced for the conspiracy offense, if

convicted, from five to ten years. See 21 U.S.C.

§ 841(b)(1)(A)(vii).

A year after Bucci started whosarat.com, the Government,

on July 28, 2005, filed a second superseding indictment

charging Bucci with the same two drug-trafficking offenses,

but adding fourteen additional counts involving money

laundering, tax evasion, and unlawfully structuring

financial transactions to avoid reporting requirements. The

second superseding indictment also added Bucci’s mother,

Catherine Bucci, as a co-defendant.

Bucci claims that the Government’s decision to file the

two superseding indictments in his case—which increased the

number of charges against him from two to sixteen and the

amount of marijuana charged in the alleged drug-trafficking

conspiracy from 100 to at least 1,000 kilograms—amounted to

vindictive prosecution intended to punish him for exercising

his First Amendment right to operate his website,

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whosarat.com. 2 Bucci sought to prove vindictive prosecution

by demonstrating circumstances establishing a likelihood of

vindictiveness sufficient to create a presumption that the

prosecution was, in fact, acting vindictively. See United

States v. Jenkins, 537 F.3d 1, 3 (1st Cir. 2008), cert.

denied, 129 S. Ct. 433 (2008). It is difficult to make such

a showing pretrial, however, in light of the broad

discretion afforded the prosecutor to determine who should

be prosecuted and for what crime, and the presumption that

the prosecutor has exercised that discretion in good faith. 3

2
The Government does not dispute that Bucci’s website
enjoys First Amendment protection. We therefore assume,
without deciding, that that is so. See United States v.
Carmichael, 326 F. Supp. 2d 1267, 1270 (holding similar
website “constitutes protected speech”), supplemented by 326
F. Supp. 2d 1303 (M.D. Ala. 2004).
3
In contrast to a pretrial claim of vindictive
prosecution, like the one presented here, the Supreme Court
has recognized that the Government’s decision to increase
the charges brought against a defendant after he has once
been convicted may more readily create a presumption of
vindictiveness:

[O]nce a trial begins—and certainly by the time a
conviction has been obtained—it is much more likely
that the [Government] has discovered and assessed
all of the information against an accused and has
made a determination, on the basis of that
information, of the extent to which he should be
prosecuted. Thus, a change in the charging
decision made after an initial trial is completed
is much more likely to be improperly motivated than
is a pretrial decision.

United States v. Goodwin, 457 U.S. 368, 381 (1982).

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See United States v. Goodwin, 457 U.S. 368, 377, 380-81

(1982); cf. United States v. Armstrong, 517 U.S. 456, 464-65

(1996) (discussing presumption in context of

selective-prosecution claim).

In our system, so long as the prosecutor has
probable cause to believe that the accused
committed an offense defined by statute, the
decision whether or not to prosecute, and what
charge to file or bring before a grand jury,
generally rests entirely in [the prosecutor’s]
discretion. Within the limits set by the
legislature’s constitutionally valid definition of
chargeable offenses, the conscious exercise of some
selectivity in enforcement is not in itself a
federal constitutional violation so long as the
selection was not deliberately based upon an
unjustifiable standard such as race, religion, or
other arbitrary classification.

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quotation,

citation, alteration, footnote omitted).

a. Denial of Bucci’s discovery request

In the district court, Bucci sought discovery from the

Government in order to support his vindictive-prosecution

claim. The district court denied that request. We review

that decision for an abuse of discretion. See United States

v. Lewis, 517 F.3d 20, 23 (1st Cir. 2008) (reviewing

selective-prosecution claim).

i. Applicable standard

In light of the presumption that a prosecutor has acted

in good faith in exercising his discretion to make charging

decisions, courts require a defendant seeking discovery

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first to come forth with “some” objective evidence tending

to show the existence of prosecutorial vindictiveness. See,

e.g., United States v. Wilson, 262 F.3d 305, 315 (4th Cir.

2001); United States v. Sanders, 211 F.3d 711, 717 (2d Cir.

2000). These courts derive this standard from United States

v. Armstrong, see 517 U.S. at 468, in which the Supreme

Court addressed discovery sought in support of a

selective-prosecution claim. See Wilson, 262 F.3d at

315-16; Sanders, 211 F.3d at 717. This is the standard that

the district court applied in Bucci’s case, and we adopt it

here.

ii. Whether Bucci made such a showing here

In order to obtain discovery, then, Bucci first had to

advance some evidence tending to establish his

vindictive-prosecution claim. He failed to do so.

In support of his discovery motion, Bucci relied on “the

statements of law enforcement and government officers

reporting whosarat.com contained in . . . newspaper

articles, documents, and security reports.” While the

reported statements of these officers expressed serious

concern about the danger to informants posed by postings

made on Bucci’s website, Bucci set forth no evidence

suggesting that this concern ever affected the prosecutors

making the specific charging decisions in his case. To

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obtain discovery, Bucci must do more than simply “identify

a potential motive for prosecutorial animus.” Sanders, 211

F.3d at 718. He must connect any vindictive animus to those

making the challenged charging decisions in his case. See

United States v. Goulding, 26 F.3d 656, 662 (7th Cir. 1994).

Bucci also relied on evidence regarding the Government’s

opposition to a pretrial motion Bucci’s co-defendant,

Catherine Bucci, filed in this case seeking early disclosure

of statements made by Government witnesses. In opposing

that request, the Government noted that, while it generally

would not oppose early disclosure, in this case it would not

agree to it because of the Government’s concern that Bucci

was trying to intimidate Government witnesses through

whosarat.com. In opposing Catherine Bucci’s motion,

however, the Government was only asserting a legitimate

litigation strategy. The fact that it was based in part on

the effects the information posted on Bucci’s website might

have on this specific prosecution did not suggest that

prosecutors filed the superseding indictments against Bucci

to retaliate against him for operating the website. See

United States v. Segal, 495 F.3d 826, 833 (7th Cir. 2007)

(“A prosecutor cannot be said to act vindictively by taking

into account a defendant’s perceived efforts to intimidate

witnesses.”).

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 In support of his discovery request, Bucci further

relied on the general circumstances attendant to his

prosecution, asserting that the prosecutor all along had

enough evidence to charge him with the added offenses and

increased amount of marijuana, but did not bring those

charges until after Bucci started whosarat.com. Assuming

that the Government had enough evidence to indict Bucci

initially on the increased charges, this fact alone is

insufficient to establish that the Government later filed

the superseding indictments to punish Bucci for

whosarat.com. See United States v. Roach, 502 F.3d 425,

444-45 (6th Cir. 2007) (rejecting argument that the fact

that the Government could have brought charges initially,

but did not do so, indicated the prosecutor’s

vindictiveness), cert. denied, 128 S. Ct. 2051 (2008).

Moreover, “evidence of suspicious timing alone does not

indicate prosecutorial animus.” United States v. Cooper,

461 F.3d 850, 856 (7th Cir. 2006) (quotations omitted). In

any event, the district court noted that “the sequence of

events in this case is not so remarkable as to justify

discovery.” We agree. Bucci began operating his website in

August 2004. It was six months later that the Government

filed the first superseding indictment, and another six

months before the Government filed the second superseding

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indictment against Bucci. These superseding indictments

were not so close in time to Bucci’s starting the

whosarat.com website to provide strong evidence that the

prosecutor acted vindictively. See United States v.

Marrapese, 826 F.2d 145, 147 (1st Cir. 1987) (noting two

events that were “well removed in time” were not strong

evidence of actual vindictiveness).

For all of these reasons, we cannot conclude that the

district court abused its discretion in denying Bucci

discovery in support of his vindictive-prosecution claim.

b. Denial of motion to dismiss indictment

Despite not being able to conduct discovery, Bucci

nevertheless moved for the dismissal of the second

superseding indictment, asserting that it was the result of

vindictive prosecution. The district court denied Bucci’s

motion. We review that decision for an abuse of discretion.

See United States v. Poole, 407 F.3d 767, 772 (6th Cir.

2005). But in applying this deferential standard, we review

any ancillary factual findings for clear error and relevant

legal determinations de novo. See United States v.

Aviles-Sierra, 531 F.3d 123, 126 (1st Cir. 2008). We agree

with the Government that the “subsidiary question” presented

here, whether Bucci established a presumption of

vindictiveness, is a legal determination that we should

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review de novo. See United States v. Barner, 441 F.3d 1310,

1315 n.5 (11th Cir. 2006); Wilson, 262 F.3d at 316.

Bucci argues that he presented evidence to the district

court sufficient to establish a presumption of

vindictiveness and shift the burden to the prosecution to

show it had legitimate reasons for increasing the charges

against him. We reject that argument, for the same reasons

discussed above.

2. Denial of motion to dismiss Count 5 as time-barred

Bucci moved for the dismissal of the second superseding

indictment’s fifth count, arguing that it was time-barred.

Because the pertinent facts are undisputed, this court

reviews de novo the district court’s decision to deny that

motion. See United States v. DeLeon, 444 F.3d 41, 51 (1st

Cir. 2006).

The relevant statute of limitations, 18 U.S.C.

§ 3282(a), provides that “[e]xcept as otherwise provided by

law, no person shall be prosecuted, tried, or punished for

any offense, not capital, unless the indictment is found or

the information is instituted within five years next after

such offense shall have been committed.” Ordinarily the

limitation period begins to run when the crime is complete,

see Toussie v. United States, 397 U.S. 112, 115 (1970), and

the parties do not argue otherwise here.

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 The fifth count of the second superseding indictment

charged that Bucci,

[o]n or about July 28, 2000 . . . did knowingly
and intentionally engage in a monetary transaction
in property derived from specified unlawful
activity–to wit: the deposit of approximately
$222,179.88 into his Checking Account . . . at
First Massachusetts Bank . . . with proceeds
derived from the sale of controlled substances.

All in violation of Title 18, United States
Code, Section 1957. 4

The Government filed the second superseding indictment

on July 28, 2005, exactly five years to the day after the

charged offense. But the parties agree that Bucci actually

submitted the deposit at issue to the bank after 2:30 p.m.

on July 27, 2000. The bank did not credit that deposit to

4
18 U.S.C. § 1957 provides, in relevant part, that

(a) Whoever, in any of the circumstances set forth
in subsection (d), knowingly engages or attempts to
engage in a monetary transaction in criminally
derived property of a value greater than $10,000
and is derived from specified unlawful activity,
shall be punished as provided in subsection (b).

. . . .

(f) As used in this section —

(1) the term “monetary transaction” means the
deposit, withdrawal, transfer, or exchange, in or
affecting interstate or foreign commerce, of
funds . . . by, through, or to a financial
institution . . . , but such term does not include
any transaction necessary to preserve a person’s
right to representation as guaranteed by the sixth
amendment to the Constitution.

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Bucci’s account until the next business day, July 28. The

question presented in this case, then, is when was this

charged offense complete: when Bucci submitted the deposit

on July 27 or when the bank credited Bucci’s account on July

28. The parties do not cite, and we have not found, any

authority addressing this exact question.

In resolving this question, we look to the relevant

language of § 1957(a). The statute proscribes knowingly

engaging in a monetary transaction. The transaction at

issue here was the deposit of funds. Pursuant to the

express terms of the bank’s policy, of which the bank

informed Bucci, a submission of funds to the bank after 2:00

p.m. would not be deposited into the depositor’s account

until the following business day. Thus, Bucci did not

“engage” in this monetary transaction until July 28, 2000,

and the indictment charging this offense was, therefore,

timely filed.

B. Fourth Amendment issues

Bucci claims that law enforcement officials violated the

Fourth Amendment by 1) conducting almost constant

surveillance of his home using a video camera; and

2) stopping his vehicle without probable cause. The

district court denied Bucci’s motion to suppress asserted on

these grounds. In considering the district court’s decision

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to deny a suppression motion, this court reviews legal

questions de novo and any factual findings for clear error.

See United States v. McMullin, 568 F.3d 1, 5 (1st Cir.

2009), petition for cert. filed, (U.S. Aug. 24, 2009)

(No. 09-6112).

1. Video surveillance of Bucci’s residence

Law enforcement authorities installed a video camera on

a utility pole across the street from Bucci’s home and

conducted surveillance of the front of his house for eight

months. “The camera was placed in a fixed location that

enabled agents to monitor activity on the driveway [and]

afforded agents a view of the garage” door and inside the

garage when the door was open. “The video camera had no

remote capabilities that allowed agents to either change the

view or magnification of the camera without being physically

at the scene.”

Before a court can address the merits of a motion to

suppress, see United States v. Rodriguez-Lozada, 558 F.3d

29, 37 (1st Cir. 2009), petition for cert filed, (U.S. May

19, 2009) (No. 09-5537), the defendant must first establish

that his own Fourth Amendment rights were violated by

showing that he had a reasonable expectation of privacy in

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the place searched. 5 See United States v. Rheault, 561 F.3d

55, 59 (1st Cir. 2009), petition for cert. filed, (U.S. June

18, 2009) (No. 08-11022). To establish such an expectation

of privacy, Bucci must show that 1) he “has exhibited an

actual, subjective expectation of privacy” in the area

searched; and 2) “such subjective expectation is one that

society is prepared to recognize as objectively reasonable.”

Id. (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)).

Bucci has failed to establish either a subjective or an

objective expectation of privacy in the front of his home,

as viewed by the camera. We focus here only on the lack of

a reasonable objective expectation of privacy because this

failure is so clear. See United States v.

Vilches-Navarrete, 523 F.3d 1, 14 (1st Cir. 2008), cert.

denied, 129 S. Ct. 208 (2008). “There are no fences, gates

or shrubbery located in front of [Bucci’s residence] that

obstruct the view of the driveway or the garage from the

street. Both [are] plainly visible.” An individual does

not have an expectation of privacy in items or places he

exposes to the public. See Katz v. United States, 389 U.S.

5
Although courts often refer to this inquiry as a
question of standing, it is more appropriately treated as a
substantive Fourth Amendment legal question. See United
States v. Rheault, 561 F.3d 55, 58 n.8 (1st Cir. 2009),
petition for cert. filed, (U.S. June 18, 2009)
(No. 08-11022).

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347, 351 (1967) (“[T]he Fourth Amendment protects people,

not places. What a person knowingly exposes to the public,

even in his own home or office, is not a subject of Fourth

Amendment protection.”); see also California v. Ciraolo, 476

U.S. 207, 213 (1986). That legal principle is dispositive

here. See Kyllo v. United States, 533 U.S. 27, 31-33 (2001)

(noting lawfulness of unenhanced visual surveillance of a

home).

2. Search of Bucci’s vehicle on June 4, 2003

Bucci also moved to suppress over three hundred pounds

of marijuana that officers found in Bucci’s vehicle when

they pulled him over on June 4, 2003, alleging the officers

did not have probable cause to stop him at that time. “If

there is probable cause to believe a vehicle contains

evidence of criminal activity,” officers may, without a

warrant, search “any area of the vehicle in which the

evidence might be found.” Arizona v. Gant, 129 S. Ct. 1710,

1721 (2009). To prove “the applicability of this exception

to the warrant requirement,” United States v. Dickerson, 514

F.3d 60, 66 (1st Cir. 2008), cert denied, 128 S. Ct. 1690

(2008), “the government must demonstrate that law

enforcement officers had a belief, reasonably arising out of

circumstances known to the seizing officer, that the vehicle

contained that which by law is subject to seizure,” United

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States v. Lopez, 380 F.3d 538, 543 (1st Cir. 2004)

(quotation, alterations omitted). Whether a particular set

of facts rises to the level of probable cause is a legal

determination that this court reviews de novo. See United

States v. Rodrigue, 560 F.3d 29, 32 (1st Cir. 2009).

Here, at the time officers stopped and searched Bucci’s

vehicle, they knew the following: A confidential informant

told officers that Bucci was involved in marijuana

trafficking. Over the next eight months, officers

themselves observed what appeared to be deliveries being

made to Bucci’s home through vehicles driven into his garage

and unloaded out of public view. After these deliveries,

officers would find empty boxes and bags in Bucci’s garbage

which contained marijuana residue. Soon thereafter, a

number of individuals would come to Bucci’s home, take other

boxes or bags from the house, and depart in short order.

On June 2, 2003, the confidential informant told agents

that “Bucci might have recently received a shipment of

marijuana.”

On the morning of June 4, 2003, the pole
camera showed Bucci and another man — later
identified as defendant Belmonte — carrying eight
large cardboard boxes (similar to the size and
construction to those seized during the garbage
searches) into the garage of Bucci’s residence.
Once the boxes were in the garage, the door was
closed, and Bucci and Belmonte remained inside the
residence for approximately two hours. . . .

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 Belmonte and Bucci eventually emerged from the
garage carrying a box which appeared to be very
heavy. The two walked towards [Belmonte’s] trailer
and returned to the garage empty handed. Within
minutes, Belmonte exited the garage, got into the
pick-up truck with the trailer attached, and drove
off.

Thereafter, “[a]gents ordered police officers to stop

the vehicle driven by Belmonte.” 6

While Belmonte was being stopped by police,
another man pulled into Bucci’s driveway. Bucci
came out of the house, and the driver of the
vehicle — later identified as Defendant Martin —
parked the vehicle, and entered the residence with
Bucci. Moments later, Bucci and Martin came out of
the residence and got into their respective
vehicles. Martin moved his vehicle so that Bucci
could drive his vehicle out of the garage, and
Martin immediately drove his vehicle into the
garage, and the garage door was closed. Several
minutes later, Bucci drove his vehicle into the
garage. Bucci reentered the garage, and the garage
door was closed again. A few minutes later, Bucci
and Martin came out of the garage and drove away in
their respective vehicles.

Officers then stopped Bucci and searched his vehicle. Based

on all the information known to the officers at the time

they stopped Bucci, they had probable cause to believe there

6
There was a factual dispute as to whether or not agents
found marijuana in Belmonte’s trailer before they stopped
Bucci. But the district court expressly did “not rely on
the evidence seized from Belmonte’s trailer in assessing
whether the Government possessed probable cause to stop and
search Bucci’s motor vehicle.”

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was evidence of criminal activity in his vehicle at that

time. 7

C. Government’s rebuttal opening statement

Bucci challenges both the district court’s decision, at

trial, to permit the Government to give a rebuttal opening

statement and the substance of that statement. Although

rebuttal opening statements are rare, generally the

management of a trial is left to the district court’s

discretion. See United States v. Moore, 923 F.2d 910, 913

(1st Cir. 1991). So, too, is “[t]he scope and extent of

an opening” statement. United States v. Hershenow, 680 F.2d

847, 858 (1st Cir. 1982). Here, the district court did not

abuse its discretion in allowing the Government a rebuttal

opening statement. Nor does the substance of that statement

warrant relief.

7
Bucci’s chief argument on appeal is that there was
never any previous indication that he had ever delivered
drugs in his own vehicle. First, that is not true. The
district court determined that, on March 28, 2003, the video
surveillance camera captured Bucci and another man loading
several large bags into Bucci’s car and then driving away;
Bucci returned home alone an hour later. Bucci has never
specifically challenged any of the district court’s factual
recitation. Moreover, even without any previous connection
specifically between Bucci’s vehicle and the prior observed
conduct, probable cause existed to believe that, on June 4,
2003, there was evidence of criminal activity in his
vehicle.

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D. Sentencing issues

1. Basing Bucci’s sentence on the amount of drugs
found by the district court

Bucci contends that the district court violated his

Sixth Amendment right to a jury trial by basing his sentence

on the court’s factual finding, made by a preponderance of

the evidence, that Bucci was responsible for 2,900 kilograms

of marijuana. 8 Because Bucci did not raise this argument in

the district court, we review for plain error. See Fed. R.

Crim. P. 52(b); see also Puckett v. United States, 129

S. Ct. 1423, 1428-29 (2009). Here, we find no error.

The jury found beyond a reasonable doubt that Bucci

participated in a conspiracy involving more than 1,000

kilograms of marijuana. That finding established both the

statutory mandatory minimum sentence Bucci faced on his

drug-trafficking conspiracy conviction and “the maximum

penalty the district court may impose.” United States v.

Santiago, 560 F.3d 62, 67 (1st Cir. 2009), petition for

cert. filed, (U.S. June 6, 2009) (No. 08-10809). But in

8
Bucci also argues that “increasing the
mandatory-minimum [statutory] sentence” required by his
drug-trafficking conspiracy conviction, “based upon judicial
findings [made] by a preponderance of the evidence[,]
violates the Sixth Amendment.” But Bucci acknowledges that
the Supreme Court, as well as the First Circuit, has already
rejected this argument. See Harris v. United States, 536
U.S. 545, 557 (2002) (plurality opinion); United States v.
Goodine, 326 F.3d 26, 27-32 (1st Cir. 2003).

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calculating Bucci’s offense level under the sentencing

guidelines, the court properly found by a preponderance of

the evidence that Bucci’s offenses and his related conduct

actually involved 2,900 kilograms of marijuana. See United

States v. Cruz-Rodriguez, 541 F.3d 19, 32 (1st Cir. 2008),

cert. denied, 129 S. Ct. 1017, 1923 (2009).

Under United States v. Booker, 543 U.S. 220 (2005),

Sixth Amendment error does not occur because the district

judge found facts, by a preponderance of the evidence, that

increased the defendant’s sentence beyond that authorized by

the jury’s verdict; rather, Sixth Amendment error occurs

when the district court does so while treating the

sentencing guidelines as mandatory rather than advisory.

See United States v. Luciano, 414 F.3d 174, 179 (1st Cir.

2005). And that did not happen here.

2. Whether the district court realized the discretion
it had to impose a below-guideline sentence

Bucci next argues that the sentencing court did not

realize the extent to which it had discretion to impose a

sentence below the advisory guideline range. As proof,

Bucci points to the district judge’s announcement, after

imposing a sentence at the bottom of the advisory guideline

range, that “I, myself, don’t believe in sentences as long

as I imposed today, but I couldn’t in my conscience as a

judge find reasons that I should go below the guidelines;

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and accordingly, I’ve sentenced you to the bottom of the

guidelines.” 9

Viewing the sentencing proceeding as a whole, we

conclude, instead, that the district court was fully aware

of its discretion to impose a below-guideline sentence. See

Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 591,

596-97, 602 (2007); Rita v. United States, 551 U.S. 338,

350-55 (2007). The court’s awareness is best illustrated by

a spirited exchange the court had with the prosecutor during

the first of two sentencing hearings: In response to the

Government’s argument that the court could only “legally

sentence” Bucci as low as the bottom of the Presentence

Report’s recommended guideline range, the court inquired

THE COURT: I don’t quite understand.

[PROSECUTOR]: Here’s why.

THE COURT: A Court is authorized to go below
that.

[PROSECUTOR]: I understand, your Honor. But—

9
In light of this statement, the Government concedes
that Bucci’s case should be remanded for the limited purpose
of allowing the district court to resentence Bucci. We are
not bound by the Government’s concession, however. See
Orloff v. Willoughby, 345 U.S. 83, 87 (1953); see also
United States v. Rodriguez, 433 F.3d 411, 414 n.6 (4th Cir.
2006) (noting that “we are not at liberty to vacate and
remand for resentencing on the Government’s concession
alone,” citing supporting authority).

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 THE COURT: I’m not saying in this particular
case that I should or I would, but I certainly have
the power to do so.

[PROSECUTOR]: I’m not saying you don’t have
the power, I’m saying . . . I don’t think the
Court on this record could deviate below 151 months
[the bottom of the Presentence Report’s recommended
guideline range] in a way that would be legally
tentative [sic], okay, and here’s why: The Supreme
Court in United States versus Rita on June 21st
held that the sentencing guideline range is
presumptively reasonable.

THE COURT: Yes. 10

[PROSECUTOR]: Of course courts have the
discretion to go below it, but if they do, they
need to, in detail, justify why they’re going
below.

THE COURT: Of course.

[PROSECUTOR] And I don’t think it can be done
on this record. . . .

. . . .

[PROSECUTOR]: What the government is asking
for is a sentence that is based on the law —

THE COURT: Oh, come on.

10
During the second sentencing hearing, defense counsel
accurately asserted that

when we were here the last time, certain statements
were made by the government in terms of what Rita
v. United States means and about a presumption of
reasonableness, and I’ll just point out that Rita
very clearly says on page 12 of the majority
decision that the presumption that they’re talking
about here does not apply to the district court;
that is an appellate review standard.

See Rita, 551 U.S. at 351. The court responded, “I’ve read
Rita since the last time and I’m aware of that, yes.”

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 [PROSECUTOR]: — and the evidence.
Well, your Honor, you make a statement like
that, and I’m sorry, but with all due respect, the
government is asking for a sentence —

THE COURT: Are you aware of the words in [18
U.S.C.] 3553 which say “sufficient but not
unnecessary” or “not excessive”?

[PROSECUTOR]: I am aware of that, your Honor.

THE COURT: Well, those words are important.

This exchange, as well as the entire sentencing record

considered as a whole, reflects the district court’s clear

understanding that it had discretion to impose a

below-guideline sentence.

On appeal, Bucci also points to Kimbrough v. United

States, 552 U.S. 85, 128 S. Ct. 558, 564 (2007), which the

Supreme Court decided after Bucci’s sentencing, as affording

a district court even greater discretion to impose a

below-guideline sentence than the district court had at the

time it sentenced Bucci. Kimbrough recognized the “district

courts’ authority to vary from the crack cocaine Guidelines

based on [the sentencing court’s] policy disagreement with

them, and not simply based on an individualized

determination that they yield an excessive sentence in a

particular case.” Spears v. United States, 129 S. Ct. 840,

843 (2009); see also Kimbrough, 128 S. Ct. at 564.

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 Relying on Kimbrough, Bucci appears to argue, for the

first time on appeal, that drug-trafficking sentences under

the guidelines are unnecessarily long as a policy matter.

The First Circuit has “remanded pre-Kimbrough sentences

without preserved claims where ‘there was some explicit

indication that the district court might well alter its

sentence.’” Santiago, 560 F.3d at 68 (quoting United States

v. Boardman, 528 F.3d 86, 87 (1st Cir. 2008)) (alterations

omitted). But we do not read the district court’s

comment — “I, myself, don’t believe in sentences as long as

I imposed today, but I couldn’t in my conscience as a judge

find reasons that I should go below the guidelines,” — as

indicating that the court might well alter the sentence it

imposed on remand. Instead, we interpret the district

court’s remarks as an indication that there was no reason

the court could find in this case that would justify

imposing a below-guideline sentence. See United States v.

Olivero, 552 F.3d 34, 42 (1st Cir. 2009) (holding district

court’s remarks that “it could not act on an ‘individual

sense of justice’ and that it had to apply rules that ‘it

would rather not apply if [it] were free to decide

otherwise’” did not show that the sentencing court was

unaware of discretion to impose below-guideline sentence;

instead, the remark indicated that the sentencing court did

- 25 -
not believe “there was [any] reason to depart from the

Guidelines”), cert. denied, 129 S. Ct. 2174 (2009). And a

district court, in exercising its discretion to impose a

below-guideline sentence, must still do so in a reasoned

manner. See Gall, 128 S. Ct. at 596-97; see also United

States v. Taylor, 532 F.3d 68, 70 (1st Cir. 2008).

Therefore, we decline to remand Bucci’s case for

resentencing on this basis. See United States v. King, 554

F.3d 177, 182 (1st Cir. 2009), cert. denied, 129 S. Ct. 2169

(2009).

3. Whether the district court adequately considered
Bucci’s argument for a below-guideline sentence

Bucci argues that the district court did not adequately

consider his argument for a below-guideline sentence, based

upon the sentencing disparity between Bucci and his

co-conspirators. Bucci acknowledges that he did not object

at sentencing to the alleged inadequacy of the district

court’s consideration of his argument; Bucci, therefore,

concedes this court should review this issue for plain

error. See Fed. R. Crim. P. 52(b).

Even assuming for argument’s sake there was error, Bucci

must also show that such error affected his substantial

rights. See Puckett, 129 S. Ct. at 1429. In the sentencing

context, that means Bucci must show that there is a

“reasonable probability that, but for the error, the

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district court would have imposed a different, more

favorable sentence.” United States v. Gonzalez-Castillo,

562 F.3d 80, 83 (1st Cir. 2009) (quotation omitted). Bucci

has not shown that here.

E. Whether the district court erred in instructing the
jury that “proceeds” from Bucci’s drug trafficking, for
purposes of forfeiture under 21 U.S.C. § 853, meant
gross receipts

Bucci challenges the instruction the district court gave

jurors defining “proceeds” for forfeiture purposes. Because

Bucci did not object to this instruction after the trial

court gave it to the jury, this court reviews for plain

error. See United States v. Roberson, 459 F.3d 39, 45 (1st

Cir. 2006).

The forfeiture provision at issue here, 21 U.S.C.

§ 853(a)(1), provides in relevant part that “[a]ny person

convicted of a violation of this subchapter” addressing drug

trafficking “shall forfeit to the United

States . . . (1) any property constituting or derived from,

any proceeds the person obtained, directly or indirectly, as

the result of such violation.” (Emphasis added.) In

Bucci’s case, the district court instructed the jury that

[p]roceeds of drug trafficking include any monies
or other property that a defendant obtained
directly or indirectly as the result of his
drug-trafficking violations. Proceeds include the
total amount of gross proceeds obtained by the
defendant as a result of his drug trafficking and
is not reduced by any amounts the defendant paid

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 for the drugs he later sold or for any other costs
or expenses he incurred.

(Emphasis added.)

This instruction is consistent with First Circuit

authority. In United States v. Hurley, 63 F.3d 1, 21 (1st

Cir. 1995), we previously held that “proceeds,” for

forfeiture purposes under 18 U.S.C. § 1963, were not limited

to net profits. Although we reached this conclusion in a

case involving the similarly worded forfeiture statute under

18 U.S.C. § 1963, rather than 21 U.S.C. § 853, 11 we have

11
The forfeiture statute at issue here, 21 U.S.C.
§ 853(a), provides in pertinent part:

[a]ny person convicted of a violation of this
subchapter . . . punishable by imprisonment for
more than one year shall forfeit to the United
States, irrespective of any provision of State law—

(1) any property constituting, or derived from, any
proceeds the person obtained, directly or
indirectly, as the result of such violation;

. . . .

The court, in imposing sentence on such person,
shall order, in addition to any other sentence
imposed pursuant to this subchapter . . . , that
the person forfeit to the United States all
property described in this subsection. In lieu of
a fine otherwise authorized by this part, a
defendant who derives profits or other proceeds
from an offense may be fined not more than twice
the gross profits or other proceeds.

(Emphasis added.) The concluding paragraph of the
forfeiture provision found at 18 U.S.C. § 1963(a) is worded
almost identically. Furthermore, Congress expanded
(continued...)

- 28 -
further recognized that “case law under 18 U.S.C. § 1963 is

persuasive in construing 21 U.S.C. § 853, and vice versa,”

United States v. White, 116 F.3d 948, 950 (1st Cir. 1997).

Thus, the question of whether the forfeiture instruction the

district court gave Bucci’s jurors complied with First

Circuit precedent is an easy call; it did.

The legislative history underlying § 853’s enactment

bolsters our conclusion.

Congress substantially amended § 853 along with
other forfeiture provisions as part of the
Comprehensive Crime Control Act of 1984 to enhance
the effectiveness of then existing forfeiture
statutes under both the Organized Crime Control
Act, which was aimed at “racketeer influenced and
corrupt organizations” (RICO), and the Drug Control
Act. The legislative history leaves no doubt that
Congress intended to impose the sanction of
criminal forfeiture against drug traffickers in
order to strip these offenders and organizations of
their economic power.

United States v. Caparotta, 571 F. Supp.2d 195, 200 (D. Me.

2008) (citations omitted).

The legislative history underlying the similarly worded

§ 1963 further “explains without qualification that the term

‘proceeds’ has been used in lieu of the term ‘profits’ in

order to alleviate the unreasonable burden on the government

11
(...continued)
§ 1963(a) at the same time that it created § 853’s
“drug-related forfeiture provision.” United States v.
White, 116 F.3d 948, 950 (1st Cir. 1997). And, at that
time, Congress noted that § 853(a) “closely parallel[s]”
§ 1963(a). See White, 116 F.3d at 950.

- 29 -
of proving net profits.” Hurley, 63 F.3d at 21 (quotation

omitted). The same is true in forfeiture proceedings under

§ 853(a). See Caparotta, 571 F. Supp.2d at 200. For these

reasons, we conclude that, at the time the district court

gave this instruction, it was correct under First Circuit

authority. Bucci concedes as much.

Bucci argues, however, that a subsequent Supreme Court

case, United States v. Santos, 128 S. Ct. 2020 (2008)

(plurality opinion), now makes the forfeiture instruction

given in his case wrong. 12 We cannot agree.

In Santos, a plurality of the Court held that the term

“proceeds,” as used in yet another forfeiture statute, 18

U.S.C. § 1956(a), meant “‘profits’ rather than ‘receipts,’

at least when the predicate offense is an illegal lottery

operation.” 13 Levesque, 546 F.3d at 82 (citing Santos, 128

12
This precise issue was raised in United States v.
Levesque, 546 F.3d 78, 81-82 (1st Cir. 2008). In that case,
we remanded the question to the district court to address it
in the first instance and thus we did not resolve the issue.
See id. at 82-83.
13
18 U.S.C. § 1956(a)(1), which is codified among
general federal racketeering and money laundering statutes,
see 18 U.S.C. §§ 1951-1960, provides in pertinent part that

[w]hoever, knowing that the property involved in a
financial transaction represents proceeds of some
form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact
involves the proceeds of unspecified unlawful
activity—
(continued...)

- 30 -
S. Ct. at 2025 (plurality opinion), and Santos, 128 S. Ct.

at 2033-34 (Stevens, J., concurring in the judgment)).

Based upon Santos, Bucci submits that the question presented

here is whether “the monies which may be forfeited under a[]

[21] U.S.C. § 853 money judgment are the gross proceeds of

the offense or [instead are] the gross profits after the

cost of the drugs sold is subtracted.” 14

Contrary to Bucci’s argument, Santos is not controlling

here. The forfeiture statute at issue in Santos, 18 U.S.C.

13
(...continued)

(A)(i) with the intent to promote the
carrying on of specified unlawful
activity;

. . . .

shall be sentenced to a fine of not more than
$500,000 or twice the value of the property
involved in the transaction, whichever is greater,
or imprisonment for not more than twenty years, or
both. For purposes of this paragraph, a financial
transaction shall be considered to be one involving
the proceeds of specified unlawful activity if it
is part of a set of parallel or dependent
transactions, any one of which involves the
proceeds of specified unlawful activity, and all of
which are part of a single plan or arrangement.

(Emphasis added.) Section 1956, then, not only addresses
forfeiture, but also sets forth a substantive money
laundering offense.
14
Bucci argues, then, that “proceeds” means “gross
profits”—the gross proceeds minus the cost of the drugs. He
does not contend that “proceeds” means “profits,” which
Bucci defines as the gross proceeds minus all expenses
incurred in Bucci’s drug-trafficking business.

- 31 -
§ 1956(a), is distinguishable from the statute at issue

here, 21 U.S.C. § 853, in at least two critical respects.

First, § 1956(a) refers only to “proceeds,” and does not use

the phrase “profits or other proceeds” that is found in

§ 853. To interpret the term “proceeds” in the phrase

“profits or other proceeds” to mean profits would render the

word “profits” redundant. See Caparotta, 571 F. Supp.2d at

199; see also Nat’l Ass’n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644, 669 (2007) (cautioning “against

reading a text in a way that makes part of it redundant”).

The language found in § 1956(a), on the other hand, which

was at issue in Santos, refers only to “proceeds” and does

not contain the additional word “profits,” and thus does not

present this redundancy problem.

Second, § 1956(a) sets forth not simply a forfeiture

provision, but also a substantive criminal offense. That

was a critical point for the Santos plurality. In Santos,

the defendant was convicted of both conducting an illegal

gambling business, in violation of 18 U.S.C. § 1955, and

money laundering under 18 U.S.C. § 1956(a), which required

proof that the defendant used the proceeds of the illegal

gambling operation to “promote” that illegal business. See

Santos, 128 S. Ct. at 2023. Justice Stevens, who provided

the fifth vote in Santos, see id. at 2031, was particularly

- 32 -
concerned about the “perverse” result that would occur if

the Government were allowed “to treat the mere payment of

the expense of operating an illegal gambling business,” the

operation of which is itself a federal offense, as a

separate money laundering offense under § 1956(a). Santos,

128 S. Ct. at 2032-33. According to Justice Stevens, that

“perverse” result is “tantamount to double jeopardy, which

is particularly unfair in [Santos’] case because the

penalties for money laundering are substantially more severe

than those for the underlying offense of operating a

gambling business.” Id. at 2033. This same “merger”

problem also concerned the four members of the Santos

plurality. See id. at 2026-28.

Under 21 U.S.C. § 853, however, there is no possibility

of such a “perverse” merger problem because, unlike the

forfeiture statute at issue in Santos, the forfeiture

statute here, § 853(a), does not set forth a substantive

criminal offense. Instead, “[t]o become subject to a

forfeiture under § 853, a defendant has to be convicted of

a predicate crime under Title 21, and, upon such conviction,

§ 853 simply assures that a drug dealer is deprived of the

economic power generated by illegally deprived wealth.”

Caparotta, 571 F. Supp.2d at 199-200.

- 33 -
 For these reasons, the district court did not plainly

err in instructing Bucci’s jury that “proceeds” meant “gross

proceeds.”

III. CONCLUSION

We AFFIRM Bucci’s convictions, sentence and the

forfeiture orders in all respects.

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