USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 95-1919
UNITED STATES,
Appellee,
v.
ANH VAN, A/K/A ANDY,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________
____________________
Before
Boudin, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Edward P. Ryan, Jr., with whom O'Connor & Ryan, P.C. was on ___________________ _____________________
brief for appellant.
Michael J. Pelgro, Assistant United States Attorney, _________________
Organized Crime Drug Enforcement Task Force, with whom Donald K. _________
Stern, United States Attorney, was on brief for appellee. _____
____________________
June 18, 1996
____________________
Per Curiam. Anh Van pled guilty to conspiracy to Per Curiam. __________
deal unlawfully in firearms, 18 U.S.C. 371, unlawful
dealing in firearms, id. 922(a)(1), and six counts ___
relating to his unlawful possession of firearms, id. ___
922(g)(1), 922(k); 26 U.S.C. 5861(d). He appeals to
challenge a four-level increase imposed under the sentencing
guidelines on the ground that he was an organizer or leader
of a criminal activity that involved five or more criminally
responsible participants or was otherwise extensive.
U.S.S.G. 3B1.1(a). Out of an abundance of caution, we are
retaining jurisdiction over the case and remanding for
findings to clarify the district court's basis for its
decision.
Under the guideline, the defendant, in order to
qualify for the four-level adjustment, must have been an
organizer or leader of a criminal activity, and the criminal ___
activity must have involved five or more participants
(including the defendant) or have been "otherwise extensive." __
U.S.S.G. 3B1.1(a). Because the principal dispute in this
case concerns the scope rather than the status determination,
we limit ourselves to the facts pertaining to the scope of
the criminal activity.
Briefly summarized, the undisputed facts in the
presentence report stated that Van sold six firearms to a
federal undercover agent over a period of a year. Prior to
-2- 2
each sale, the agent contacted Van and asked to buy a
firearm. Van made the delivery and collected the money for
one of the transactions, but sent others to complete the
other five. The agent covertly recorded at least some of the
transactions. The presentence report initially concluded
that five or more participants were involved in the
transactions. Van did not dispute that a total of eight
individuals (in addition to himself) were at least present
for one or more of the transactions.
Van did dispute whether some of these individuals
were shown to be criminally responsible participants; the
guideline provides that in order to impose the four-level
increase on the ground that the activity involved five or
more participants, four individuals other than the defendant
must be found to be criminally responsible. U.S.S.G.
3B1.1, comment. (n.1). The probation officer responded with
an addendum suggesting that the presence of the eight other
individuals would show the activity to have been otherwise
extensive, even if the criminal culpability of any four
individuals could not be proven.
The district judge, after a sentencing hearing,
imposed the four-level increase and checked the box on the
judgment form indicating that he was adopting the findings of
the presentence report. But the court did not make explicit
findings of its own, beyond the following statement at the
-3- 3
hearing:
[T]he defendant, Anh Van, was an
organizer or leader of a criminal
activity that involved five or more
participants or was otherwise extensive,
and . . . therefore, a four-level
increase is warranted. . . .
The law governing the district court's obligation
and our own on review is well-settled and easily stated. At
the time of sentencing, the court "shall state in open court
the reasons for its imposition of the particular sentence."
18 U.S.C. 3553(c). This requires the court to make
"reasonably specific findings" and to "explain, generally,
how it computed the applicable guideline range." United ______
States v. McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990). We ______ ________
have found minimal compliance with section 3553(c) when we
could determine that the court relied on the presentence
report, and the presentence report provided a sufficient
basis for meaningful appellate review. See United States v. ___ _____________
Cruz, 981 F.2d 613, 617-18 (1st Cir. 1992); United States v. ____ _____________
Schultz, 970 F.2d 960, 963 n.7 (1st Cir. 1992), cert. denied, _______ ____ ______
113 S. Ct. 1020 (1993); cf. United States v. Catano, 65 F.3d __ _____________ ______
219, 230 (1st Cir. 1995); McDowell, 918 F.2d at 1011-12. The ________
government bears the burden of proving the facts material to
the application of the guidelines by a preponderance of the
evidence, and the requirements of Fed. R. Crim. P. 32,
dealing solely with fact findings, are somewhat more
demanding than the general directive of section 3553(c).
-4- 4
United States v. Osorio, 929 F.2d 753, 764 n.5 (1st Cir. _____________ ______
1991). Fed. R. Crim. P. 32 allows the court to adopt the
facts set forth in the presentence report "[e]xcept for any
unresolved objection" noted in the addendum submitted by the
probation officer as required by the rule. Fed. R. Crim. P.
32(b)(6)(C), (D). The court must resolve any outstanding
disputed facts or determine that they will not be taken into
account, and must append a written record of its findings and
determinations to the presentence report. Fed. R. Crim. P.
32(c)(1). Although explicit resolution of disputed material
facts is preferable, we have found that the court implicitly
resolved the facts when the court's statements and the
sentence imposed showed that the facts were decided in a
particular way. See, e.g., Cruz, 981 F.2d at 618-19; United ___ ____ ____ ______
States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58 (1st ______ ___________________________
Cir. 1991); cf., e.g., United States v. Geer, 923 F.2d 892, __ ____ _____________ ____
898 (1st Cir. 1991); United States v. Levy, 897 F.2d 596, 599 _____________ ____
(1st Cir. 1990). In the absence of legal error, the district
court's ruling will be sustained so long as the information
upon which it relied is sufficient to support the findings
under a clearly erroneous standard. United States v. _____________
Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993). Of course, we _______
have to be able to determine what the district court found
and the basis for the findings to the extent necessary to
permit effective appellate review. McDowell, 918 F.2d at ________
-5- 5
1012.
In this instance, what may have been a slip of the
tongue by the district court has complicated matters. If the
district court had held squarely that the activity involved
four criminally responsible participants plus the defendant,
the court's findings would be adequate for us to conclude
that it implicitly resolved the material disputed facts. As
to three of the other participants, Van does not dispute that
they were criminally responsible. Two pled guilty to
firearms charges and a third (who was indicted but fled the
jurisdiction) was involved in transporting and handing over a
weapon to the government agent during a transaction arranged
by Van. The principal remaining factual dispute concerns the
criminal culpability of a man referred to in the presentence
report as "Michael."
The presentence report stated that Michael was
present in a car with Hieu Minh Nguyen, whose criminal
responsibility Van does not dispute, during a sale of heroin
and a gun to the government agent. The agent purchased a
gram of heroin, then asked about the gun. Nguyen said
something to Michael in Vietnamese; Michael then retrieved a
paper bag which contained a semiautomatic pistol, and the
agent purchased the weapon. The agent said he would be
interested in purchasing more guns, and according to the
probation officer, Michael responded that he would contact
-6- 6
the agent as soon as he had more guns to sell.
In his objections to the presentence report, Van
contended that transcripts of the tape of the conversation
showed that it was Nguyen, not Michael, who discussed the
procurement of more guns. But Van does not dispute that
Michael retrieved the paper bag containing the gun and was
present during the transaction. There is no finding by the
district court as to who made the statement, but it is not
clear that it matters because the district court could
rationally have found that Michael was more likely than not
criminally responsible even if he merely retrieved the
weapon. Of course, in the abstract, it is possible that
Michael was an unknowing dupe who understood nothing of the
transaction and thought he was handing over a box of candy.
But the surrounding circumstances make this unlikely, and the
district court was certainly entitled to draw the inference
that Michael knowingly participated. Cf. United States v. ___ _____________
Kirvan, 997 F.2d 963, 966-67 (1st Cir. 1993). ______
The difficulty here is that there is no clear
finding by the district judge that he found five criminally
responsible participants. Although the judge checked the box
indicating he was adopting the presentence report's findings,
the cross-reference remains ambiguous because the addendum
does not explicitly state which ground the probation officer
adopted, saying alternatively that there were "at least nine
-7- 7
participants," but that even if there were not at least five
criminally responsible participants, the total of nine
persons involved would support an extensiveness finding. The
district court added (or did not dispel) uncertainty by
phrasing its own finding in the disjunctive. While there
might be reason to guess that the court meant to find there
were five criminally responsible participants, there is no
unequivocal finding.
The problem is exacerbated to the extent that the
court may have relied upon the alternative ground that Van's
criminal activity was "otherwise extensive." Again, given
the disjunctive, we are not even sure the district court made
the "otherwise extensive" finding, and the only circumstance
articulated in the presentence report as supporting such a
finding was that a total of nine individuals, whether
criminally responsible or not, were present during the six
transactions. An "otherwise extensive" finding, however,
must be warranted by "the totality of the circumstances,
including not only the number of participants but also the
width, breadth, scope, complexity, and duration of the
scheme." United States v. Dietz, 950 F.2d 50, 53 (1st Cir. _____________ _____
1991); see also United States v. Graciani, 61 F.3d 70, 76 n.7 ___ ____ _____________ ________
(1st Cir. 1995).
All this might not matter if the undisputed facts
required a finding either that Michael was a criminally ________
-8- 8
responsible participant or that the activity was otherwise
extensive. But even the government does not argue this in so
many words. And such findings would require factual
inferences and characterizations as to which the district
court has considerable latitude. Graciani, 61 F.3d at 75. ________
Thus, we are hesitant to find that the district court was
compelled to impose the four-level increase and that the
omission of findings is harmless.
Accordingly, we think the best solution, and one we
have used in previous cases, e.g., Geer, 923 F.2d at 898, is ____ ____
to ask the district court to specify which of the two grounds
(five or more participants, otherwise extensive, or both) it
relied upon and to make brief findings, either by
incorporating pertinent portions of the presentence report or
otherwise, as to each ground relied upon. Cf. Fed. R. Crim. ___
P. 32(c)(1). The district court is requested to advise us of
its findings by supplemental order within 45 days. When we
receive the findings, we will determine whether any further
briefing or proceeding is required.
Determinations in connection with sentencing are an
odd hybrid in the law. Based on a tradition of discretionary
sentencing, the burden of proof and other procedural
safeguards are rather relaxed in this realm. See Nichols v. ___ _______
United States, 114 S. Ct. 1921, 1928 (1994); United States v. _____________ _____________
Tucker, 404 U.S. 443, 446 (1972). On the other hand, the ______
-9- 9
mandatory character of the guidelines (subject to departures)
and the significant sentences they entail make guideline
determinations considerably important to defendants, as
reflected in the requirements of 18 U.S.C. 3553(c) and Fed.
R. Crim. P. 32. Our judgment as to whether an error or
ambiguity is harmless has to take account of both of these
somewhat divergent attitudes toward sentencing.
In this instance, we think that the ambiguity in
the findings is patent (even though it may rest on a slip of
the tongue) and is not unequivocally harmless. Given the
stakes for the defendant and the simplicity of obtaining a
clarification, we think the limited remand order is
appropriate. If the district court concludes on
reexamination that the four-level increase should not be
applied, it can so state in its supplemental findings and we
will remand the case for resentencing. This court therefore
retains jurisdiction but remands for supplemental findings. ____________________ _______
It is so ordered. ________________
-10- 10