United States v. Caparotta

United States Court of Appeals
For the First Circuit

No. 11-1713

UNITED STATES OF AMERICA,

Appellee,

v.

BRANDON CAPAROTTA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Tina Schneider, by Appointment of the Court, for appellant.
Renée M. Bunker, Assistant U.S. Attorney, with whom Thomas E.
Delahanty II, United States Attorney, was on brief, for appellee.

April 5, 2012

*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. After pleading guilty to stealing

firearms and possessing stolen firearms, defendant Brandon

Caparotta received a sentence of fifty-four months' imprisonment.

That sentence was based, in part, on the district court's finding

that Caparotta qualified as a "prohibited person" who, because of

his history of substance abuse, was barred from possessing

firearms. Caparotta raises two arguments on appeal, both stemming

from an interview with the Pretrial Services Office during which he

disclosed information about his drug use at the time of the

offense. That information, he claims, was obtained upon a promise

of confidentiality, and it was therefore a violation of his due

process rights and of Federal Rule of Criminal Procedure 32 for it

to be included in his Presentence Investigation Report (PSR) and

used against him at sentencing. He also claims that he was denied

the effective assistance of counsel, in violation of the Sixth

Amendment, when his trial attorney allowed him to disclose the

information. We find that Caparotta's due process claim is waived,

that he has not demonstrated a violation of Rule 32, and that his

Sixth Amendment claim fails. We therefore affirm.

During the early morning hours of August 23, 2010,

Caparotta participated in a burglary of the Mill Creek Rod and Gun

store, a federally-licensed firearms dealer in Orrington, Maine.

Caparotta was arrested on August 26, 2010. On August 27, 2010, the

Pretrial Services Office conducted an interview with Caparotta

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(which we will refer to as the "bail interview") to determine

whether he was eligible for release on bond. Caparotta's attorney

was present at that interview, during which Caparotta discussed,

among other things, his history of substance abuse.

After the interview, the Pretrial Services Office issued

a Pretrial Services Report, dated August 31, 2010. According to

the report, Caparotta admitted during the bail interview that he

had begun using marijuana at age nine (some ten years prior), used

it twice per week, and had last used it "two days ago."1 He also

admitted to heroin use beginning at age fourteen and ending three

years prior and to Vicodin use beginning at age sixteen and ending

four weeks prior. The report also indicated that Caparotta had

received residential and outpatient treatment for substance abuse

in the past. The following "Notice of Confidentiality" appeared at

the top of the report: "Pursuant to Title 18 U.S.C. 3153(c)(1),

' . . . Information obtained in the course of performing pretrial

services functions in relation to a particular accused shall be

used only for the purpose of a bail determination and shall

otherwise be confidential.'"

On November 10, 2010, Caparotta pled guilty to one count

of stealing firearms from the premises of a federally-licensed

1
We assume this means two days before the interview with the
Pretrial Services Office, which occurred on August 27, 2010. In
any event, Caparotta does not dispute that he admitted to drug use
within days of the August 23, 2010 offense.

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dealer, in violation of 18 U.S.C. § 922(u), and one count of

possessing stolen firearms, in violation of 18 U.S.C. § 922(j).

Included in the prosecution's version of events, to which Caparotta

consented when he pled guilty, were descriptions of several text

messages he had sent to Robert Barker, who allegedly stored stolen

guns for Caparotta and purchased guns from him. The text messages,

obtained through a search of Barker's cell phone, revealed that

Caparotta had been soliciting drugs and referencing his own drug

use in the days immediately surrounding the crime.2

In December 2010, the Probation Office conducted a

presentence investigation interview (which we will refer to as the

"presentence interview") with Caparotta, at which Caparotta's

attorney was also present. Again, Caparotta discussed his

substance abuse history, but this time, on the advice of his

attorney, he declined to discuss any drug use specifically in

August 2010. In its ensuing PSR, dated December 29, 2010, the

Probation Office noted that Caparotta had reported "a significant

history of substance abuse," including that he used marijuana "'all

day long' through August 2010." The PSR also discussed Caparotta's

past use of several other drugs, including morphine, heroin, powder

2
Specifically, three days before the burglary, on August 20,
2010, Caparotta sent Barker a text message asking Barker, "Can u
get crack?" Three days after the burglary, on August 26, 2010,
Caparotta sent Barker a message asking if Barker wanted to "burn a
bowl," to which Barker responded, "I can't[,] gotta take a piss
test after the weekend."

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cocaine, crack cocaine, opiate pain killers, and LSD. Though

Caparotta's base offense level (BOL) would otherwise have been 12,

see U.S.S.G. § 2K2.1(a)(7), the Probation Office recommended a BOL

of 14 because Caparotta "was a regular user of and addicted to

illegal drugs" at the time he committed the offense and thus

qualified as a "prohibited person," see id. § 2K2.1(a)(6).3

We pause for a moment to explain that term. The federal

Sentencing Guidelines require a BOL of 14 if the defendant "was a

prohibited person at the time [he] committed the instant offense."

Id. The Guidelines define "prohibited person" as any person

described in 18 U.S.C. § 922(g) or (n). Id. § 2K2.1 cmt. n.3.

Section 922(g)(3), applicable here, bars firearm possession by a

person "who is an unlawful user of . . . any controlled substance."

18 U.S.C. § 922(g)(3). We have held that the term "unlawful user"

in section 922(g)(3) "requires a 'temporal nexus between the gun

possession and regular drug use.'" United States v. Marceau, 554

F.3d 24, 30 (1st Cir. 2009) (citing United States v. Edwards, 540

F.3d 1156, 1162 (10th Cir. 2008)). Thus, "an 'unlawful user' is

one who engages in '[(1)] regular use [(2)] over a long period of

3
The Probation Office also recommended a six-point
enhancement for the number of firearms involved, see U.S.S.G.
§ 2K2.1(b)(1)(C), a two-point enhancement because Caparotta
possessed multiple firearms that were stolen, see id.
§ 2K2.1(b)(4), and a four-point enhancement for using at least one
stolen firearm while participating in the offense, see id.
§§ 2K2.1(b)(6)(B), 2K2.1 cmt. n.14. Including a three-level
reduction for acceptance of responsibility, see id. § 3E1.1, the
PSR thus recommended an overall offense level of 23.

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time [(3)] proximate to or contemporaneous with the possession of

the firearm.'" Id. (citing United States v. McCowan, 469 F.3d 386,

392 n.4 (5th Cir. 2006)).

Caparotta objected to the PSR's finding that he was a

"prohibited person" on the grounds that he had not admitted, during

the presentence interview, that he had been using drugs at the time

of the offense in August 2010. In an Addendum to the PSR, filed on

January 26, 2011, the Probation Office confirmed that, during his

presentence interview, Caparotta had declined to discuss "drug use

near the time of the possession of the firearms" but noted that he

had "indicated that he was a regular drug abuser through July 2010,

with the instant offense occurring on August 23, 2010." The

Addendum also stated that, during his bail interview on August 27,

2010, Caparotta had "admitted that he had last smoked marijuana a

couple of days ago and was using the drug twice a week."

In a February 23, 2010 sentencing memorandum, Caparotta

expounded upon his objection to the use of his bail interview

statements that he had last used marijuana "two days ago" and was

using the drug twice a week in August 2010.4 He invoked 18 U.S.C.

4
The government argues that Caparotta must have admitted to
using marijuana in August 2010 during his presentence interview,
because the PSR said that he "indicated that he used [marijuana]
'all day long' through August 2010," and the "all day long"
characterization could not have come from his bail interview,
during which he only admitted to using the drug "twice a week" in
August 2010, with his last use "two days ago" (at least according
to the Pretrial Services Report). However, the Addendum to the
PSR: (1) acknowledged that Caparotta had declined, during his

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§ 3153(c)(1), which states that "[e]xcept as provided in [18 U.S.C.

§ 3153(c)(2)], information obtained in the course of performing

pretrial services functions in relation to a particular accused

shall be used only for the purposes of a bail determination and

shall otherwise be confidential." Caparotta argued that there was

no applicable exception in section 3153(c)(2) and that section

3153(c)(3) explicitly bars the admission of information made

confidential under section 3153(c)(1) "on the issue of guilt in a

criminal judicial proceeding." 18 U.S.C. § 3153(c)(3).

At a sentencing hearing on June 6, 2011, the district

court found that Caparotta was an unlawful user of controlled

substances and thus a "prohibited person." The court rejected

Caparotta's argument that section 3153(c) bars the use of bail

interview statements at sentencing, noting that "the language [of

that section] is restricted to guilt" and "[w]e're not deciding the

issue of guilt today." As for whether, considering the bail

presentence interview, to discuss his drug use near the time of the
offense; (2) emphasized that he had admitted "that he was a regular
drug abuser through July 2010"; but (3) did not state that he had
admitted, during his presentence interview, to any drug use
whatsoever in August 2010. Presumably, if Caparotta had stated
during the presentence interview that he had used marijuana "all
day long" through August 2010, the Probation Office would have made
that clear in the Addendum. It thus seems likely that, during the
presentence interview, Caparotta admitted to using marijuana "all
day long" through July 2010, and the Probation Office mistakenly
wrote "August 2010" in the PSR. In any event, we will assume here
that Caparotta did not admit to any drug use in August 2010 during
his presentence interview and that the district court therefore
relied on his bail interview statements when it concluded that he
used marijuana through August 2010.

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interview information, Caparotta's drug use was sufficiently

proximate to or contemporaneous with the offense to satisfy the

"unlawful user" standard, see Marceau, 554 F.3d at 30, the district

court recognized that there was "no direct evidence that

[Caparotta] actually used marijuana . . . as he was holding the gun

at the Mill Creek Rod and Gun shop" but nonetheless found that

Caparotta's use of marijuana through August 2010 made it clear that

he was an unlawful user.

The court thus used a BOL of 14 and applied the increases

and reduction that the Probation Office had recommended.5 With a

total offense level of 23 and a Criminal History Category of II,

Caparotta's recommended guideline sentencing range was fifty-one to

sixty-three months. The court imposed a sentence of fifty-four

months on each count, to run concurrently. Had the district court

not found Caparotta to be a "prohibited person," the government

concedes that his offense level would have been at least four

points lower.6 In this timely appeal, Caparotta challenges the

5
See supra note 3.
6
The district court would have started with a BOL of 12, see
U.S.S.G. § 2K2.1(a)(7), and the two-level enhancement under
U.S.S.G. § 2K2.1(b)(4)(A) would not have applied, see id. § 2K2.1
cmt. n.8(A). Caparotta argues that his offense level would have
been six points lower without the "prohibited person" finding,
because there would have been insufficient evidence for the
district court to apply a six-level increase for possession of
twenty-five or more firearms, see id. § 2K2.1(b)(1)(C), but the
government disagrees. We need not resolve that dispute, because we
find that the court properly concluded that Caparotta was a
"prohibited person."

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district court's conclusion that he was a "prohibited person" and

argues that he was denied the effective assistance of counsel when

his attorney allowed him to disclose his August 2010 drug use

during the bail interview.

We begin with the "prohibited person" classification.

The first two prongs of the Marceau test are not at issue here;

Caparotta does not contest the district court's finding that he

engaged in regular drug use over a long period of time. 554 F.3d

at 30. He takes issue only with the district court's determination

that his drug use was "proximate to or contemporaneous with the

possession of the firearm." Id. Specifically, he argues that it

was a violation of his due process rights and of Federal Rule of

Criminal Procedure 32 for the Probation Office to include in his

PSR, and for the district court to consider at sentencing, his bail

interview statements regarding his drug use in August 2010, which

he says he provided based on a promise of confidentiality. He also

argues that, without those statements, there was insufficient

evidence of drug use proximate to or contemporaneous with the

offense. We would normally review claims of legal error made at

sentencing de novo, United States v. Wallace, 573 F.3d 82, 92 (1st

Cir. 2009), but we do not do so here, because Caparotta has waived

one of his arguments and forfeited the other, see United States v.

Walker, 665 F.3d 212, 227 (1st Cir. 2011) (describing the

difference between waiver and forfeiture).

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 Before the district court, Caparotta objected to the use

of his bail interview statements on the grounds that no exception

in section 3153 covered those statements, see 18 U.S.C.

§ 3153(c)(2), and that the statements could not be used to

determine guilt, see id. § 3153(c)(3).7 He did not raise an

objection on due process grounds, nor did he invoke Rule 32. These

are new arguments, raised for the first time on appeal, and we

review such arguments, if at all, for plain error only. See, e.g.,

United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st Cir. 2011).

However, Caparotta's due process argument is simply not developed

enough for us to decipher it; the argument consists of just two

sentences and two cursory citations in his brief. It is therefore

waived, and we will not address it here. United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990). As for Caparotta's Rule 32 claim,

he must satisfy the plain error standard, which requires him to

demonstrate that: (1) an error occurred; (2) the error "was clear

and obvious"; (3) the error affected his substantial rights; and

(4) the error "seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." Ríos-Hernández, 645

7
Caparotta has not renewed that argument on appeal, perhaps
because he now recognizes that the statute explicitly carves out an
exception whereby probation officers can use information obtained
by Pretrial Services "for the purpose of compiling presentence
reports." 18 U.S.C. § 3153(c)(2)(C); see also Pretrial Services
Office Confidentiality Reg. 5(D).

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F.3d at 462 (citation and internal quotation marks omitted).

Caparotta cannot clear that "high bar." Id. at 463.

The relevant subsection of Rule 32 reads as follows:

(3) Exclusions. The presentence report must
exclude the following:

(A) any diagnoses that, if disclosed, might
seriously disrupt a rehabilitation program;

(B) any sources of information obtained upon a
promise of confidentiality; and

(C) any other information that, if disclosed,
might result in physical or other harm to the
defendant or others.

Fed. R. Crim. P. 32(d)(3). Caparotta claims that his bail

interview statements were "sources of information obtained upon a

promise of confidentiality" and thus should have been excluded from

his PSR pursuant to Rule 32(d)(3)(B).8 Id. However, Caparotta has

8
The government has not raised the issue here, and we do not
decide it today, but it is unclear whether the Rule 32(d)(3)(B)
exclusion could ever apply to a defendant's own statements. The
plain language of the rule excludes from a PSR "any sources of
information obtained upon a promise of confidentiality," not "any
information obtained upon a promise of confidentiality." Fed. R.
Crim. P. 32(d)(3)(B) (emphasis added). Thus, the exclusion seems
to be designed to protect confidential sources who provide
information to the Probation Office, not to ensure the
confidentiality of statements that the defendant has made. See,
e.g., United States v. Streich, 560 F.3d 926, 934 (9th Cir. 2009)
(Kleinfeld, J., concurring) (Rule 32(d)(3)(B) "protects someone
who, for example, might tell something relevant to the sentence to
the probation officer, but fears retaliation if his or her identity
is revealed"); United States v. Hamad, 495 F.3d 241, 248 (6th Cir.
2007) (a district court's summary to the defendant of any
information excluded from a PSR under Rule 32(d)(3)(B) "may not
disclose the source of the information"); United States v. Trevino,
89 F.3d 187, 191 (4th Cir. 1996) ("Granted, the 'chilling effect'
on contributors should be ameliorated somewhat now that sources of

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presented no evidence that he was made a promise of confidentiality

at the start of his bail interview, or that he made the statements

at issue in reliance on that promise. Caparotta points to the

confidentiality notice printed at the top of the Pretrial Services

Report, but that report was published after Caparotta made the

statements in question, so he could not have relied on the notice

in providing the statements. Nor will we infer from the notice, as

Caparotta urges us to, that the Pretrial Services Office must have

made Caparotta a similar promise of confidentiality at the start of

his bail interview.

Under the circumstances presented here, the Probation

Office had the authority to use Caparotta's bail interview

statements in preparing his PSR, see 18 U.S.C. § 3153(c)(2)(C), and

the district court had broad discretion to determine whether the

information was appropriate to consider at sentencing, see, e.g.,

United States v. Rivera-Rodríguez, 489 F.3d 48, 53 (1st Cir. 2007).

There was no error, much less an error that was "clear and

obvious." Ríos-Hernández, 645 F.3d at 462.

Finally, we turn to Caparotta's argument that his Sixth

Amendment rights were violated when his trial attorney allowed him

confidential information can no longer be named in the PSR.");
United States v. Moore, 958 F.2d 646, 652 (5th Cir. 1992)
(referring to disclosure of "the name of a confidential source");
United States v. Charmer Indus., Inc., 711 F.2d 1164, 1171 n.7 (2d
Cir. 1983) (under a prior version of the rule, the court could
withhold from the defendant information contained in a PSR "to
protect confidential sources").

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to disclose his August 2010 drug use during the bail interview,

which he claims led directly to the finding that he was a

"prohibited person" under U.S.S.G. § 2K2.1(a)(6). Although

Caparotta did not bring an ineffective assistance of counsel claim

before the district court, "[w]e have recognized an exception to

the preference for resolving ineffective assistance arguments via

collateral attack where the critical facts are not genuinely in

dispute and the record is sufficiently developed to allow reasoned

consideration of an ineffective assistance claim." United States

v. Gonzalez-Arimont, 268 F.3d 8, 13 (1st Cir. 2001) (citation and

internal quotation marks omitted). In this case, the record is

sufficiently developed for us to conclude that Caparotta's claim

lacks merit. See id. (disposing of a clearly meritless ineffective

assistance claim on direct review).

In order to prevail on a claim of ineffective assistance

of counsel, a defendant must show that: (1) his attorney's

performance was deficient; and (2) "the deficient performance

prejudiced the defense." Strickland v. Washington, 466 U.S. 668,

687 (1984). If the defendant fails to satisfy either prong of the

Strickland test, his claim fails. See id. at 697; Tevlin v.

Spencer, 621 F.3d 59, 66 (1st Cir. 2010) ("A defendant's failure to

satisfy one prong of the Strickland analysis obviates the need for

a court to consider the remaining prong.").

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 Here, Caparotta cannot establish prejudice, because there

was ample evidence for the district court to conclude that he was

a "prohibited person" even without the bail interview information.

Caparotta admitted during his presentence interview that he had

used marijuana regularly through July 2010, with the offense

occurring in August 2010, and he sent text messages three days

before the burglary and three days after the burglary soliciting

drugs and referencing drug use. He has not argued that it would

have been improper for the court to consider any of that evidence,

which alone supported a finding that he used drugs "proximate to or

contemporaneous with the possession of the firearm." Marceau, 554

F.3d at 30; see also 27 C.F.R. § 478.11 (defining "unlawful use" as

use that "has occurred recently enough to indicate that the

individual [was] actively engaged in such conduct" at the time of

the offense, even if he did not use the substance "at the precise

time" that he possessed the firearm). Thus, assuming simply for

the sake of argument that Caparotta's attorney committed an error,

Caparotta cannot demonstrate a reasonable probability that, but for

the error, "the result of the proceeding would have been

different." Strickland, 466 U.S. at 694.

We do not mean to suggest that Caparotta's attorney's

performance was deficient. Indeed, we highly doubt that it was, as

there appear to have been valid tactical reasons why she allowed

Caparotta to discuss his recent drug use with the Pretrial Services

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Office.9 See id. at 689 (noting "the wide latitude counsel must

have in making tactical decisions"). But we need not decide the

issue, because we can dispose of Caparotta's ineffective assistance

claim on the prejudice prong alone. See id. at 697; Tevlin, 621

F.3d at 66.

For the foregoing reasons, we affirm.

9
As the attorney explained in her sentencing memorandum, "In
this case, Mr. Caparotta's reporting of his recent drug use was of
utmost importance in his bond proceedings, in that having him
subject to drug testing would allow the Pretrial Services Office to
monitor his drug intake and ensure that he was not using drugs
after having been released on bond. Substances such as marijuana
can stay in a person's system for up to thirty days, depending on
past use patterns. If Mr. Caparotta had refused to discuss his
pattern of drug use, he may have been subject to pretrial
detention."

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