USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 96-1677
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO ROBLES-TORRES, a/k/a ROMERO - 55,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
__________________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Selya, Circuit Judge. _____________
__________________________
Joseph C. Laws, Jr. for appellant. ___________________
Corbin A. Weiss, with whom John C. Keeney, Acting Assistant _______________ ______________
Attorney General, Theresa M.B. Van Vliet, Chief, Narcotic and ________________________
Dangerous Drug Section, U.S. Department of Justice, and Guillermo _________
Gil, United States Attorney, were on brief, for appellee. ___
__________________________
March 28, 1997
__________________________
SELYA, Circuit Judge. Defendant-appellant Julio SELYA, Circuit Judge. ______________
Robles-Torres (Robles) invites us to set aside his sentence and
order a new round of proceedings. Descrying no cognizable error,
we decline the invitation.
I I
Robles was among fifty-two defendants indicted as a
part of a gigantic drugs-and-money operation. The government
charged him, inter alia, with conspiring to distribute cocaine _____ ____
and conspiring to launder funds. See 21 U.S.C. 841(b)(1)(A), ___
846 (1994); 18 U.S.C. 1956(h)(1994).
Robles, who claims to have suffered from schizophrenia
since adolescence, requested a competency determination. See 18 ___
U.S.C. 4241 (1994). He was examined by a psychiatrist, Dr.
Jos R. Fumero-Vidal, who informed the district court in February
1995 that the appellant was not competent to stand trial. The
district court provisionally accepted Dr. Fumero-Vidal's opinion
and remitted the appellant to the federal correctional center and
hospital at Butner, North Carolina, with directions to conduct a
further examination.
Initially, prison officials concurred with Dr. Fumero-
Vidal's assessment (albeit concluding that, at the time of the
crimes, Robles "was able to appreciate the nature and quality . .
. of his acts"). On November 6, 1995, however, prison officials
issued a new evaluation in which they declared that Robles "is
now competent to stand trial." The new report also advised that,
given Robles' "inconsistent clinical presentation throughout the
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course of his hospitalization," the examiners had concluded that
he was "malingering," that is, that he had engaged in "the
intentional production of false or grossly exaggerated physical
or psychological symptoms, motivated by external incentives."
The report went on to state that the appellant's malingering
comprised his "method of attempting to elude criminal
responsibility."
On December 18, 1995, the district court found Robles
competent to stand trial. Shortly thereafter, Robles pleaded
guilty to both conspiracy charges. On May 14, 1996, the district
court sentenced him to a 135-month prison term (the low end of
the applicable guideline range). This appeal followed.
II II
The appellant assigns error in two respects. First, he
alleges that the district court erred in refusing to permit him
to present the testimony of a psychiatrist, Dr. Gerardo Sanz-
Ortega, at the disposition hearing. Second, he avers that the
court erroneously refused to depart below the guideline
sentencing range (GSR) in imposing sentence.1 We treat these
asseverations separately.
A. A. __
Under the federal sentencing guidelines, "when any
factor important to the sentencing determination is reasonably in
____________________
1All references herein to the sentencing guidelines are to
the November 1995 edition, in effect on the date of sentencing.
See United States v. Harotunian, 920 F.2d 1040, 1041-42 & n.2 ___ _____________ __________
(1st Cir. 1990).
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dispute, the parties shall be given an adequate opportunity to
present information to the court regarding that factor." USSG
6A1.3. This provision does not mean that every factual dispute
pertinent to the imposition of sentence demands a full-dress
evidentiary hearing after all, many disputes can adequately be
heard and determined on a paper record, see, e.g., United States ___ ____ _____________
v. Lilly, 983 F.2d 300, 310-11 (1st Cir. 1992); United States v. _____ _____________
Shattuck, 961 F.2d 1012, 1015 (1st Cir. 1992); Aoude v. Mobil Oil ________ _____ _________
Corp., 862 F.2d 890, 894 (1st Cir. 1988) but it does mean that _____
an evidentiary hearing sometimes may be required at sentencing.
See USSG 6A1.3, comment. Still, neither the Confrontation ___
Clause nor the rules of evidence apply during the sentencing
phase of a criminal proceeding, see United States v. Tardiff, 969 ___ _____________ _______
F.2d 1283, 1287 (1st Cir. 1992), and evidentiary hearings at
sentencing are and should remain the exception rather than
the rule. In the last analysis, the decision to hold an
evidentiary hearing at the time of sentencing or, alternatively,
to eschew such a hearing, lies within the sound discretion of the
sentencing court. See Lilly, 983 F.2d at 310-11; Tardiff, 969 ___ _____ _______
F.2d at 1286; United States v. Garcia, 954 F.2d 12, 19 (1st Cir. _____________ ______
1992).
We see nothing remotely resembling an abuse of
discretion in this instance. We base this determination on three
interrelated sets of circumstances: the availability of other
information, the essentially cumulative nature of the proposed
testimony, and the appellant's failure to explore alternative
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methods of presentation.
In the first place, the appellant did not seek to
contradict the factual predicate laid in the Presentence
Investigation Report (PSI Report), and that document described
his psychiatric history and treatment in some detail. The court
also had the benefit of careful analyses of the appellant's
mental condition from the forensic psychiatrists at Butner, along
with an opinion letter from Dr. Fumero-Vidal. What is more, the
judge had presided over the trial of two of the appellant's
codefendants, in the course of which numerous tape-recorded
telephone conversations between the appellant and his cohorts
were aired. These conversations supplied the court with direct,
contemporaneous evidence of the appellant's mental condition and
degree of impairment during the time frame when the offenses were
being committed.
In the second place, Dr. Sanz-Ortega's testimony
apparently would have been cumulative. We reach this conclusion
based largely on the offer of proof that the appellant's counsel
tendered to the trial judge. In it, he stressed that, if allowed
to testify, Dr. Sanz-Ortega would describe the nature and
etiology of the disease and its general attributes. Although Dr.
Sanz-Ortega had been the appellant's attending psychiatrist since
1979, the attorney did not claim that he (the doctor) had any
specific knowledge of the appellant's mental condition at the
time the conspiracies were ongoing, and there is nothing in the
record that leads us to believe that his general testimony about
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Robles' psychiatric history and the nature of the illness would
have added perceptibly to the historical data and the comments of
the other psychiatrists. As matters stood, the record was
replete with evidence that Robles had suffered from schizophrenia
for a long time but that its severity (and, consequently, his
symptomatology) fluctuated, with the result that the condition
sometimes affected his behavior and sometimes did not. Nothing
in the offer of proof either contradicted this evidence or added
a significant new dimension to it. We think it is settled beyond
cavil that a sentencing court need not convene an evidentiary
hearing merely to consider essentially cumulative evidence. See ___
United States v. Regan, 989 F.2d 44, 46-47 (1st Cir. 1993). _____________ _____
The final flaw in the appellant's argument relates to
the mode of presentation: the record reveals no cogent reason
why the proposed testimony of Dr. Sanz-Ortega could not have been
reduced to writing and proffered in the form of a report.
Sentencing hearings are not meant to be mini-trials, see United ___ ______
States v. Ottens, 74 F.3d 357, 360 (1st Cir. 1996), and a ______ ______
defendant cannot dictate the form of the evidence that he wishes
the court to ponder. To the contrary, a party has an obligation,
where circumstances reasonably permit, to attempt to present
desired evidence in a format convenient for ready consideration
by the sentencing court.
To be sure the court may elect to allow live testimony;
and, moreover, the court may be required to allow live testimony
in a few instances (say, when an issue takes a defendant by
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surprise or when the gist of the proffered evidence cannot be
captured in writing). In this instance, however, the court chose
not to hear the doctor's testimony, and we do not think it was
required to do so. A sentencing court has broad discretion in
determining whether live testimony is, or is not, essential, see, ___
e.g., United States v. Claudio, 44 F.3d 10, 16 (1st Cir. 1995), ____ _____________ _______
and nothing in the instant record indicates a need for live
testimony. The disposition hearing did not spring unexpectedly
out of some dark abyss, but, rather, was scheduled well in
advance, and the offer of proof did not suggest any particular
reason why Dr. Sanz-Ortega's input, like that of the other
psychiatrists who had examined Robles, could not have been
conveyed satisfactorily in a written report. The appellant's
failure to explore this avenue weighs against his assignment of
error.
We have said enough on this score. Considering all the
circumstances, we detect no misuse of discretion in the
sentencing court's denial of the appellant's request for an
evidentiary hearing. See, e.g., Regan, 989 F.2d at 45-47 ___ ____ _____
(upholding as within the district court's discretion a refusal at
sentencing to allow live testimony by physicians on the issue of
the defendant's mental capacity).
B. B. __
The appellant does not challenge the lower court's
construction of the GSR (offense level 33; criminal history
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category I; imprisonment range 135-168 months).2 Nevertheless,
he asserts that the sentencing court blundered in denying him a
downward departure on the ground of diminished mental capacity.3
We lack jurisdiction over this claim.
We need not tarry. "It is by now axiomatic that a
criminal defendant cannot ground an appeal on a sentencing
court's discretionary decision not to depart below the guideline
____________________
2In its appellate brief, the government calls a possible
bevue to our attention. During the disposition hearing, the
district court noted conclusorily that USSG 5C1.2 did not apply.
This section permits a court to sentence a defendant below
certain mandatory statutory minima when the defendant satisfies
specified criteria set forth in USSG 5C1.2(1) - (5). In cases
in which the offense level exceeds 25, USSG 2D1.1(b)(4) mandates
a two-level reduction if a defendant meets these criteria.
Robles did not receive the two-level reduction in fairness,
neither the appellant nor the government requested the district
court to consider the applicability of 2D1.1(b)(4), and the PSI
Report is silent in that respect and the prosecutor now
suggests that this likely was an oversight because he "has reason
to believe that appellant may be eligible for such a reduction."
Government Br. at 8 n.2. Under the circumstances, we direct the
district court, on remand, to reconsider the computation of the
GSR in light of the government's concession, and to reduce
Robles' sentence if the court determines it is appropriate to do
so.
3The appellant's claim is premised on USSG 5K2.13, which
provides:
If the defendant committed a non-violent
offense while suffering from significantly
reduced mental capacity not resulting from
voluntary use of drugs or other intoxicants,
a lower sentence may be warranted to reflect
the extent to which reduced mental capacity
contributed to the commission of the offense,
provided that the defendant's criminal
history does not indicate a need for
incarceration to protect the public.
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sentencing range." United States v. Pierro, 32 F.3d 611, 619 _____________ ______
(1st Cir. 1994), cert. denied, 115 S. Ct. 919 (1995). An _____ ______
exception to this black-letter rule recognizes that appellate
jurisdiction may exist "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. Gifford, 17 F.3d 462, ______________ _______
473 (1st Cir. 1994). We pointed out in Pierro that it is easy to ______
"confuse the exception and the rule." 32 F.3d at 619. We made
it plain, however, that when the decision not to depart rests
primarily on differential factfinding, the exception does not
apply. See id. ___ ___
This case fits comfortably within the confines of the
general rule. Although the appellant argues vociferously that,
in denying his motion for a downward departure under USSG
5K2.13, the district court mistakenly equated the concept of
competency to stand trial with the much different concept of
reduced mental capacity at the time of the offense (and, thus,
misapprehended the law governing departures under USSG 5K2.13),
the record of the disposition hearing belies this claim. The
transcript reveals with crystalline clarity that the court, in
reaching its decision, understood that it had the discretion to
depart downward if it found that Robles suffered from
significantly reduced mental capacity at the time he committed
the crimes of conviction. But the court, after studying the
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evidence and hearing oral argument, made a specific finding that
5K2.13 did not apply because Robles "did not commit the acts
charged in the indictment while suffering from a significantly
reduced mental capacity." The court went on to find, as a matter
of fact, that the crimes occurred while Robles was in a "very
lucid" phase, and that his criminal behavior "was the conduct of
a person who was not doing those acts because of a diminished
capacity resulting from a mental condition."
This is an exercise in differential factfinding no
more, no less. The ensuing decision not to depart was based
squarely on this factfinding, unaccompanied by any detectable
error of law. Hence, the departure decision is not reviewable on
appeal.4 See Pierro, 32 F.3d at 619; Tardiff, 969 F.2d at 1290; ___ ______ _______
United States v. Amparo, 961 F.2d 288, 292 (1st Cir. 1992); ______________ ______
United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991). We _____________ ______
need go no further.
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4Although we do not reach the merits of the decision not to
depart, we note that the lower court's factfinding seems fully
supportable. The psychiatrists all agreed on the sporadic nature
of Robles' symptoms, and the tape recordings adequately evinced
Robles' grasp of ongoing events at the critical times. Keeping
in mind that a defendant who seeks the unguent of 5K2.13 must
carry the devoir of persuasion as to the appropriateness of a
downward departure based on significantly reduced mental
capacity, it is surpassingly difficult to second-guess Judge
Laffitte's assessment. See, e.g., United States v. Nu ez- ___ ____ ______________ ______
Rodriguez, 92 F.3d 14, 24-25 (1st Cir. 1996) (affirming district _________
court's refusal to depart downward based on diminished capacity
despite a previous diagnosis of schizophrenia; district court
found that, at the time of the crime, defendant's behavior
demonstrated a cognizance "inconsistent with diminished
capacity").
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That portion of the defendant's appeal which purports That portion of the defendant's appeal which purports _______________________________________________________
to challenge the district court's refusal to depart downward is to challenge the district court's refusal to depart downward is _________________________________________________________________
dismissed for want of appellate jurisdiction. The judgment below dismissed for want of appellate jurisdiction. The judgment below _____________________________________________ __________________
is affirmed. The case is remitted to the district court for is affirmed. The case is remitted to the district court for ____________ _________________________________________________
further proceedings in respect to footnote 2 of this opinion. further proceedings in respect to footnote 2 of this opinion. ____________________________________________________________
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