USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1565
UNITED STATES,
Appellee,
v.
BLAS CAMILO,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Cyr and Lynch, Circuit Judges. ______________
_____________________
Michael J. Iacopino, with whom Timothy I. Robinson and _____________________ ____________________
Brennan, Caron, Lenehan & Iacopino were on brief for appellant. __________________________________
Jean B. Weld, Assistant United States Attorney, with whom _____________
Paul M. Gagnon, United States Attorney, was on brief for _______________
appellee.
____________________
December 18, 1995
____________________
TORRUELLA, Chief Judge. Defendant-appellant Blas TORRUELLA, Chief Judge. ____________
Camilo ("Camilo") appeals his sentence of 96 months given at his
resentencing hearing of May 2, 1995. In United States v. Camilo, _____________ ______
30 F.3d 126 (1st Cir. 1994), this court affirmed his convictions
for violations of 21 U.S.C. 841(a) and 846 pursuant to a
final judgment entered on January 3, 1994 by the district court,
and remanded for the resentencing that is the origin of this
appeal. For the reasons set forth below, we affirm.
BACKGROUND BACKGROUND __________
The facts, which are derived from the presentence
investigation reports as well as the oral and documentary
evidence introduced at the sentencing and resentencing hearings,
are as follows.
Camilo was indicted with two co-defendants on July 2,
1993. He was charged in count one with conspiracy to distribute
cocaine base (or "crack") in violation of 21 U.S.C. 846, and in
counts two and three with distributing cocaine base on April 22,
1993 and May 12, 1993, in violation of 21 U.S.C. 841(a)(1).1
____________________
1 Section 841(a)(1) provides that:
Except as authorized by this subchapter,
it shall be unlawful for any person
knowingly or intentionally--(1) to . . .
distribute . . . or possess with intent
to . . . distribute . . . a controlled
substance . . . .
Section 846 provides that:
Any person who attempts or conspires to
commit any offense defined in this
subchapter [including 841(a)(1)] shall
be subject to the same penalties as those
-2-
On October 4, 1993, Camilo pled guilty to count three pursuant to
a written plea agreement, and counts one and two were dismissed.
For count three, Camilo was sentenced on January 3, 1994 to ten
years of imprisonment and five years of supervised release.
Camilo appealed this sentence, and on August 8, 1994, the Court
remanded this case for resentencing pursuant to the agreement of
both parties at oral argument, based primarily on a change in the
sentencing recommendation policy of the United States Probation
Office pertaining to 841(b) penalties. See 21 U.S.C. 841(b) ___
(specifying penalties for 21 U.S.C. 841(a) violations). In the
wake of United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir. ______________ _______
1993), the Probation Office accordingly recommended that the
mandatory minimum sentences under 21 U.S.C. 841(b)(1) be based
only on the drug quantities involved in the offenses of
conviction.
At Camilo's resentencing hearing on May 2, 1995, the
district court assessed Camilo with two additional criminal
history points because, at the time that he committed the instant
offense, he had an outstanding Massachusetts warrant for a
probation violation. Camilo challenges this decision as error.
Additionally, Camilo argues that because cocaine powder and crack
are scientifically identical, the United States Sentencing
Guidelines' ("the Guidelines'") distinction between the two forms
____________________
prescribed for the offense, the
commission of which was the object of the
attempt or conspiracy.
-3-
of cocaine produces statutory ambiguity. Therefore, argues
Camilo, under the rule of lenity,2 he should receive the lighter
penalty for cocaine powder rather than the heavier penalty for
crack, the substance which he was in fact convicted of
distributing.
DISCUSSION DISCUSSION __________
A. The Criminal History Computation A. The Criminal History Computation
We review a district court's legal interpretation of
the Guidelines de novo, United States v. Fontana, 50 F.3d 86, 87 _______ _____________ _______
(1st Cir. 1995); United States v. Ovalle-M rquez, 36 F.3d 212, _____________ ______________
221 (1st Cir. 1994), cert. denied, 115 S. Ct. 1322, 131 L.Ed.2d _____ ______
202 (1995), and its fact-bound determinations of defendant's
actions with respect to the offense for clear error. Fontana, 50 _______
F.3d at 87; Ovalle-M rquez, 36 F.3d at 225. Furthermore, the ______________
government carries the burden of showing the facts necessary to
justify additional criminal history points. United States v. ______________
Roberts, 39 F.3d 10, 13 (1st Cir. 1994). _______
The Guidelines specify that, in determining the
Criminal History Category, the sentencing court shall add two
points to a defendant's criminal history category "if the
defendant committed the instant offense while under any criminal
justice sentence, including probation." United States Sentencing
____________________
2 The rule of lenity mandates the resolution of ambiguities in a
criminal statute favorably to the defendant. United States v. ______________
Gibbens, 25 F.3d 28, 35 (1st Cir. 1994); United States v. O'Neil, _______ _____________ ______
11 F.3d 292, 301 n.10 (1st Cir. 1993). The rule is a background
principle which casts the decisive vote when all else fails to
bring sufficient lucidity to the meaning of a penal statute.
Gibbens, 25 F.3d at 35. _______
-4-
Commission, Guidelines Manual, 4A1.1(d) (1994). Section __________________
4A1.2(m) defines the effect under 4A1.1(d) of an outstanding
warrant for a probation violation as follows:
For the purposes of 4A1.1(d), a
defendant who commits the instant offense
while a violation warrant from a prior
sentence is outstanding (e.g., a ____
probation, parole, or supervised release
violation warrant) shall be deemed to be ______________________
under a criminal justice sentence for the _________________________________
purposes of this provision if that
sentence is otherwise countable, even if
that sentence would have expired absent
such a warrant.
4A1.2(m) (emphasis added); see also 4A1.1(d), comment. (n.4) ________
(explaining the effect of a violation warrant "[f]or the purposes
of [ 4A1.1(d)]" in language almost identical to the above block
quote).
We conclude, and Camilo does not dispute, that the
sentence of two years' probation which the evidence shows was
imposed on him on June 28, 1989 was "otherwise countable" under
4A1.1(d).3 Section 4A1.1(d) specifically includes "probation"
as a "criminal justice sentence" triggering the additional two
points. Furthermore, 4A1.2(m) clearly indicates that, for
4A1.1(d) purposes, an outstanding violation warrant is to be
considered the equivalent of the criminal justice sentence under
____________________
3 The words "otherwise countable" in 4A1.2(m) appear to refer
exclusively to the fact that certain enumerated offenses are
excluded for the purposes of 4A1.1(d). These exceptions,
explained in 4A1.2(c)-(j), do not apply in the instant case.
See, e.g., 4A1.2(c) (entitled "Sentences Counted and ___ ____
Excluded"); 4A1.2(i) ("Sentences resulting from tribal court
convictions are not counted"); 4A1.2(j) ("Sentences for
expunged convictions are not counted").
-5-
which it issued, even if that sentence would otherwise have
expired absent such warrant.
Given the clarity of the relevant Guidelines, the issue
would seem to hinge simply on whether an outstanding warrant
existed, and the evidence supports the district court's finding
that it did. Sufficient evidence supports the district court's
conclusion that the outstanding warrant in question was issued on
May 2, 1991, almost two months before Camilo's probation would
have expired. However, Camilo argues that the required inquiry
is not so simple. First, citing precedents from other circuits,
he contends that the government must show that, under the law of
the prior sentence's origin (here, Massachusetts), the warrant is
not stale and the issuing court retains jurisdiction to revoke
the defendant's probation. See United States v. Lee, 941 F.2d ___ _____________ ___
571, 572-73 (7th Cir. 1991) (discussing Missouri law); United ______
States v. Baty, 931 F.2d 8, 10-11 (5th Cir. 1991) (discussing ______ ____
Texas law). Second, Camilo asserts that, under Massachusetts
law, the outstanding warrant was invalid for the purpose of
additional criminal history points, because the government failed
to present evidence that it made reasonable attempts to execute
the warrant.
We reject Camilo's proposition, which he contends to be
the law in the Fifth and Seventh Circuits, that the Guidelines'
otherwise unambiguous direction is necessarily qualified by an
additional showing under state law. We decline to follow the
cited cases because both cases were decided before the effective
-6-
date of Amendment 381 to the Guidelines, November 1, 1991, which
added both 4A1.2(m), discussed above, and 4A1.1, comment.
(n.4).4 See USSG App. C, pp. 261-62, 264 (Nov. 1994); Lee, 941 ___ ___
F.2d at 571 (decided August 26, 1991); Baty, 931 F.2d at 8 ____
(decided April 26, 1991). Not surprisingly, neither case
mentions either 4A1.2(m) or 4A1.1, comment. (n.4), which were
to become effective on November 1 of 1991, the year in which both
cases were decided. Lee, 941 F.2d at 571; Baty, 931 F.2d at 8. ___ ____
Instead, we follow the reasoning of a case not cited by
either party, United States v. Renfrew, 957 F.2d 525 (8th Cir. _____________ _______
1992). In that case, the Eighth Circuit stated that whether a
defendant was under a criminal justice offense was ultimately a
matter of federal law:
Although we agree that state law is
relevant to the question before us, our
ultimate task is to determine whether
[the defendant] was 'under' a criminal
justice sentence for purposes of
4A1.1(d). That is a question of federal
law.
Id. at 526-27 (affirming the addition of two points to __
defendant's criminal history category based on either or both
Minnesota law and 4A1.1(d), comment. (n.4)). In Renfrew, the _______
Eighth Circuit determined that regardless of whether it focused
____________________
4 We note in passing that Shepard's Citation Service indicates
that Baty has only been cited by Lee, and Lee in turn has been ____ ___ ___
cited by only one other case, United States v. Davis, 797 F. _____________ _____
Supp. 672, 675-76 (N.D. Ind. 1992) (undertaking Lee-directed ___
state law inquiry into outstanding warrant and finding under that
rubric that the instant defendant's outstanding warrant sufficed
under 4A1.1(d) for additional two-point penalty in criminal
history computation).
-7-
on Minnesota state law or on a Sentencing Commission
"postsentence clarifying amendment," see 4A1.1(d), comment. ___
(n.4), the defendant was under a criminal justice sentence for
the purposes of 4A1.1(d).5
Unlike the defendant in Renfrew, however, Camilo's _______
sentencing date, as well as his offending conduct, was subsequent
to November 1, 1991, the effective date of both 4A1.1(d),
comment. (n.4) and 4A1.2(m). As we have previously noted, the
language of 4A1.2(m) that is relevant to our analysis almost
perfectly replicates that of 4A1.1(d), comment. (n.4), which
was relied upon by the court in Renfrew. Unlike the court in _______
Renfrew, we face no ex post facto problem in following 4A1.2(m) _______
rather than the 4A1.1(d), comment. (n.4).6 See 18 U.S.C. ___
3553(a)(4) (courts should consider the kinds of sentence and
sentencing range specified by the Guidelines "that are in effect
on the date the defendant is sentenced"); U.S.S.G. 1B1.11(a)
(courts are to use "the Guidelines Manual in effect on the date
____________________
5 Renfrew, 957 F.2d at 527 ("[W]hether we focus on [Minnesota _______
law on revocation of probation] or the Sentencing Commission's
interpretation [in 4A1.1(d), comment. (n.4),] of the phrase
'under any criminal justice sentence,' we think it clear that the
district court was correct in adding two points to Renfrew's
criminal history category calculation under 4A1.1(d)."), citing ______
4A1.1(d), comment. (n.4).
6 There is a possible explanation, admittedly not included in
either amendment 381's text or its accompanying statement of
purpose, for why 4A1.2(m) repeats almost verbatim the language
of 4A1.1(d), comment. (n.4). The Sentencing Commission may
have intended the application note as a post-sentencing
clarifying amendment to guide courts reviewing sentences handed
down before November 1, 1991, while 4A1.2(m), an actual
Guideline, was intended to compel the result we reach here for
sentences dating from after November 1, 1991.
-8-
that the defendant is sentenced"). Most importantly, 4A1.2(m)
is not an application note but a Guideline definition; as such it
is not merely persuasive, but is in fact binding authority for
our interpretation of 4A1.1(d).
Given that the plain language of 4A1.2(m) is
mandatory for our purposes, and that both federal and state law
analyses lead us to the same conclusions, we therefore need not
determine here which analysis -- federal or state -- is indeed
required. Thus, as the court in Renfrew did before us, we follow _______
both lines of analysis without determining whether the state law
inquiry is mandatory.
We turn first to federal law. As a matter of federal
law, it may be argued that a delay in the execution of a
violation warrant may be so unreasonable that the defendant
cannot be said to be under a criminal justice sentence for
purposes of 4A1.1(d).7 We need not decide whether such a
reasonableness requirement exists in this case, however, because
under the facts of this case it would not benefit Camilo. The
argument described above would not apply where the delay is
attributable in significant part to the defendant's own wrongful
actions. Cf. United States v. Fisher, 895 F.2d 208, 211 (5th ___ ______________ ______
Cir. 1990); United States v. Hill, 719 F.2d 1402, 1405 (9th Cir. _____________ ____
____________________
7 It has been held that jurisdiction over a probation violator
in the federal system generally does not extend indefinitely once
a valid warrant is issued. See United States v. Hill, 719 F.2d ___ _____________ ____
1402, 1404 (9th Cir. 1983). Due process requires that a warrant
for a probation violation be executed within a reasonable time
after issuance. See id. at 1405. A similar requirement may ___ ___
exist under 4A1.1(m).
-9-
1983) (considering it important that the defendant had not
contributed to the delay). As the record shows, such is the case
here.
After Camilo was defaulted on his probation in January
1991, notice of surrender was sent to Camilo's last known
address, 42 East Haverhill Street, Lawrence, Massachusetts,
informing him of a March 27, 1991 probation violation hearing.
That hearing was continued until May 2, 1991. It is undisputed
that Camilo failed to show up for the May 2, 1991 hearing, and
the district court properly found that he had notice of the
hearing. Camilo also failed an April 17, 1991 court-ordered
urinalysis and was ordered to pay the testing fee and to report
for another urinalysis at the testing site. He failed to show up
for the second urinalysis. When the warrant was issued following
the May 2, 1991 default, the Essex County Probation Office, which
still had an address for Camilo in Lawrence, forwarded the
warrant to the Lawrence Police Department for execution.
However, Camilo had moved to Salem, New Hampshire sometime in
1990 but had never notified the Essex County Probation Office
that he had left the state. During this time Camilo also used a
number of aliases, including "Chicky," "Angel Castillo," and
"Blas Alberto Camilo Caraballo." The facts of record show that
Camilo simply made himself scarce during the time the warrant was
outstanding. For these reasons, therefore, Camilo cannot benefit
from any putative staleness of the warrant. See Fisher, 895 F.2d ___ ______
at 211; Hill, 719 F.2d at 1405. ____
-10-
Even assuming that such an inquiry is necessary, Camilo
also cannot avail himself of Massachusetts state law. Recently,
the Supreme Judicial Court recently stated that, in the context
of determining the fairness of the revocation of a defendant's
parole, one consideration is "the extent to which the parolee
reasonably relied on the inaction of the enforcing authorities."
In re Zullo, 653 N.E.2d 150, 152, 420 Mass. 872, 876 (Mass. ______ _____
1995). As noted above, Camilo could not reasonably have relied
on the inaction of the enforcing authorities. He failed to
appear at a hearing of which he had notice. Moreover, his own
actions in leaving the state without notification and in using
aliases thwarted the Essex County Probation Office's and the
Lawrence Police Department's attempts to contact him.
Upon review for clear error, we conclude that the
district court received sufficient evidence to find that Camilo
had a probation violation warrant outstanding. Under our de novo
review of the Guidelines, we hold that regardless of whether we
must focus on 4A1.2(m) or Massachusetts state law, we must
affirm the district court's criminal history computation.
B. The Distinction Between Crack and Cocaine Powder B. The Distinction Between Crack and Cocaine Powder
Camilo also argues that the district court erred in
denying his motion for a downward departure pursuant to USSG
5K2.0 and 18 U.S.C. 3553(b). Camilo's argument comprises two
parts, each of which is essential to success. First, he contends
that the district court improperly construed its discretion to
depart downward, and thus its decision to deny the departure
-11-
should be subject to plenary review on appeal.8 Second, Camilo
contends that a departure was warranted because the United States
Sentencing Commission (the "Sentencing Commission") failed to
comply with its enabling legislation9 by adopting Congress'
previously established 100-to-1 ratio in the Guidelines'
mandatory minimum penalties for cocaine distribution, U.S.S.G.
2D1.1, without fully investigating the circumstances underlying
the ratio.
However, we need not dwell on the first part of
Camilo's argument. Even assuming, arguendo, that plenary review
applies, we reject the equally crucial second part. Camilo
asserts that a recently released Sentencing Commission report
disapproving the 100-to-1 ratio constitutes a tacit admission
that the Sentencing Commission was derelict in its duty. United
____________________
8 See United States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994) ___ _____________ _______
(noting that appellate jurisdiction may attach if it appears that
the failure to depart stemmed from the sentencing court's
mistaken impression that it lacked the legal authority to deviate
from the Guideline range or, relatedly, from the court's
misapprehension of the rules governing departures); United States _____________
v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993) (stating that ______
"[p]lenary review is appropriate where the question on review is
simply whether or not the allegedly special circumstances (i.e.,
the reasons for departure) are of the 'kind' that the Guidelines,
in principle, permit the sentencing court to consider at all");
cf. United States v. Pierro, 32 F.2d 611, 619 (1st Cir. 1994) __ ______________ ______
(noting that "[i]t is by now axiomatic that a criminal defendant
cannot ground an appeal on a sentencing court's discretionary
decision not to depart below the Guidelines sentencing range.").
9 Camilo cites "21 U.S.C. 941, et seq." as the Sentencing _______
Commission's enabling legislation, but in fact there is currently
no statute at that citation. However, 28 U.S.C. 994(c),(d)
mandates that the Sentencing Commission, in establishing
categories of offenses for use in the Guidelines, consider a
number of factors that would apply to the 100-to-1 ratio. 28
U.S.C. 994(c),(d).
-12-
States Sentencing Commission, Special Report to the Congress: _________________________________
Cocaine and Federal Sentencing Policy (February 1995). In that ______________________________________
report, the Sentencing Commission "firmly concludes that it
cannot recommend a ratio differential as great as the current
100-to-1 quantity ratio." Id. at 196. Furthermore, Camilo ___
bolsters this argument by noting that the Sentencing Commission
voted on April 13, 1995,10 to eliminate the distinction in the
Guidelines between "crack" and "powder" cocaine, and recommended
to Congress that it revise the statutory penalty distinction
between the two forms of cocaine. See 60 Fed. Reg. 25,074, ___
25,075-76 (1995). The Sentencing Commission concluded that "the
[G]uideline provisions, as amended, will better take into account
the increased harms associated with some crack cocaine offenses
and, thus, the different offense levels based solely on the form
of cocaine are not required." Id. Camilo asserts that because ___
"crack" and "powder" cocaine are "synonymous" in the scientific
and medical communities (his prospective defense witness is a
medical doctor), the Guidelines' distinction between them is
ambiguous, and therefore the rule of lenity mandates that he
receive the lesser penalty. For legal support, Camilo relies on
United States v. Davis, 864 F. Supp. 1303, 1309 (N.D. Ga. 1994). _____________ _____
On these grounds, argues Camilo, the district court erred by
denying his "Motion for Services Other than Counsel" and "Motion
____________________
10 See 28 U.S.C. 994(p) (providing that Sentencing Commission ___
amendments are to take effect upon a certain date, unless an
intervening Act of Congress rejects them).
-13-
to Continue," thereby precluding Camilo from presenting evidence
that "cocaine" and "cocaine base" are scientifically identical.
For two reasons, we reject the contention that the
Sentencing Commission's acts or omissions compel a downward
departure for Camilo, and thus we also reject any argument for
expert testimony based on this theory. First, the rule of lenity
argument fails for essentially the same reason that this circuit
previously rejected the argument that scientific equivalence
requires that crack offenders be given the same sentences as
those who traffic in cocaine powder. United States v. ______________
Singleterry, 29 F.3d 733, 740 (1st Cir. 1994). In Singleterry, ___________ ___________
we concluded that health effects notwithstanding, crack in
reality does differ from cocaine powder, not least importantly
because its cheaper unit price could radically increase drug use
absent stiffer penalties for crack distributors. Id. The ___
similar medical effects from crack and cocaine powder do not
compel a finding of legal ambiguity, especially where there is
evidence of differing effects on society.
Second, in light of recent legislative developments we
conclude that the Sentencing Commission cannot be said to have
failed in its statutory duty to investigate the distinction
between crack and cocaine powder. In response to the Sentencing
Commission's April 13, 1995 vote, the House of Representatives
joined the Senate on October 18, 1995 in voting to retain the
current mandatory sentence for possession of crack cocaine,
maintaining disparate sentences for crack and powder cocaine
-14-
possession. See Pub. L. No. 104-38, 1, 109 Stat. 334, 334 ___
(1995). And on October 30, 1995, the President signed this bill
into law. Id. These actions preempt the Sentencing Commission's ___
April 13, 1995 decision to eliminate the distinction between
crack and cocaine powder from taking effect on November 1, 1995.
See 28 U.S.C. 994(p). In light of the October rejection of the ___
Sentencing Commission's April amendment, we cannot accept the
argument that the Sentencing Commission was derelict in its duty
to weigh penalties.11
Accordingly, we find no abuse of discretion in the
district court's decision not to grant a continuance to permit
the presentation of live testimony on the crack-cocaine powder
issue. See United States v. Claudio, 44 F.3d 10, 16 (1st Cir. ___ _____________ _______
1995) (reviewing for abuse of discretion district court's refusal
to postpone sentencing to allow defendant's submission of live
medical testimony).
The judgment of the district court is affirmed. affirmed ________
____________________
11 Because Camilo was sentenced in May 1995, we need not
confront any issue of pre-February 1995 Sentencing Commission
failure to investigate.
-15-