United States v. Zavala-Marti

United States Court of Appeals
For the First Circuit

No. 11-1283

UNITED STATES,

Appellee,

v.

JOSÉ MANUEL ZAVALA-MARTÍ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Lipez, and Thompson,
Circuit Judges.

Peter Goldberger, with whom María H. Sandoval and Pamela A.
Wilk were on brief, for appellant.
Dina Ávila-Jiménez, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, were on brief, for appellee.

May 13, 2013
 LIPEZ, Circuit Judge. Appellant José Manuel Zavala-Martí

("Zavala") challenges the life sentence he received for his role in

a large-scale drug operation that sold heroin, crack, cocaine, and

marijuana at a public housing project in Yabucoa, Puerto Rico. The

second of forty-seven defendants charged in a ten-count superseding

indictment, Zavala pled guilty at the end of the first day of

testimony. He identifies four substantial procedural flaws in his

sentencing: (1) the imposition of a general sentence of life

imprisonment on all counts when none of the crimes of conviction

supported that penalty; (2) the court's reliance on adverse

information it received ex parte; (3) the court's failure to

explain why it chose the highest point in the Sentencing Guidelines

range; and (4) the court's silence on his disparity argument. We

need reach only the first of these asserted problems to conclude

that resentencing is necessary. In light of the resentencing, we

also find it advisable to address the ex parte issue.

I. Background

We sketch here the factual and procedural background of

this case, describing only briefly the underlying drug conspiracy

while recounting in more detail the sentencing proceedings that are

at issue on appeal.

A. The Drug Trafficking Conspiracy

From at least 2004 through early 2008, Cruz Roberto

Ramos-Gonzalez ("Belleza") was running a multi-faceted drug

-2-
distribution operation at the Victor Berríos Public Housing Project

in Yabucoa, Puerto Rico, as well as in several other locations.1

Appellant Zavala was a high-level participant in the enterprise,

described by one co-defendant as Belleza's "right-hand man" and by

another as one of several "lieutenants" in the organization.

Appellant and several other co-conspirators served as

"administrators" of the drug points and were responsible, inter

alia, for enforcing discipline and recruiting other participants.

During the two years that appellant participated in the conspiracy,

from 2005-2007, the organization distributed about twenty-two

kilograms of cocaine, among other drugs.

In August 2007, a federal grand jury returned a seven-

count indictment charging forty-four defendants with conspiracy to

distribute heroin, cocaine, crack cocaine, and marijuana.

Appellant was named in all seven counts and surrendered to federal

agents on October 16, 2007. While in prison awaiting trial,

appellant and several co-defendants sought to induce a cooperating

co-defendant, Harry Smith Delgado-Cañuelas ("Delgado"), to recant

testimony he had given to the grand jury. Appellant arranged for

more than $5,000 to be wired to Delgado, some deposited directly

into his prison commissary account and some delivered through third

parties, in exchange for Delgado's signing and tape-recording false

1
We draw the facts from the trial transcript, appellant's
admissions at his change-of-plea hearing, his presentence
investigation report ("PSR"), and his sentencing hearing.

-3-
statements about the conspiracy. Appellant also allegedly arranged

to have a cell phone smuggled to Delgado in the prison so Delgado

could receive a call from Belleza, who was at that time a fugitive.

A ten-count superseding indictment was issued in early

2008. Appellant was listed as the second of forty-seven

individuals and again was charged in all counts. Briefly

described, the indictment alleged a conspiracy, facilitated by the

use of firearms, to distribute various quantities of the drugs

identified above near a public school and housing project,

distribution of each of the narcotics, witness tampering, and

bribery. The three witness tampering and bribery charges were

severed from the others, and trial on the remaining seven counts

began on October 13, 2009 for appellant and five co-defendants.

After a two-day jury selection process and one day of testimony,

appellant pled guilty, without a plea agreement, to all ten counts

of the superseding indictment.

B. The Charges

As the counts are central to the sentencing issues that

are the basis for this appeal, we describe each of them: (i)

conspiring to distribute fifty grams or more of crack cocaine, 500

grams or more of cocaine, 100 grams or more of heroin, and a

measurable amount of marijuana within 1,000 feet of a public

housing project or public school, in violation of 21 U.S.C.

§§ 841(a)(1), 846 and 860 (Count One); (ii) conspiring to possess

-4-
firearms in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A) and (o) (Count Two); (iii) aiding and

abetting the distribution of 100 grams or more of heroin within

1,000 feet of a public housing project or public school, in

violation of 21 U.S.C. §§ 841(a)(1), 860 and 18 U.S.C. § 2 (Count

Three); (iv) aiding and abetting in the distribution of fifty grams

or more of cocaine base ("crack"), 500 grams or more of cocaine,

and a measurable amount of marijuana within 1,000 feet of a public

housing project or public school, in violation of 21 U.S.C.

§§ 841(a)(1), 860 and 18 U.S.C. § 2 (Counts Four, Five, and Six);

(v) conspiring to tamper with a government witness, and aiding and

abetting in government witness tampering, in violation of 18 U.S.C.

§ 1512(b)(1), (k), and 18 U.S.C. § 2 (Counts Seven and Eight); (vi)

aiding and abetting in the bribery of a government witness, in

violation of 18 U.S.C. §§ 201(b)(3) and 2 (Count Nine); and (vii)

forfeiture pursuant to 21 U.S.C. § 853 and Rule 32.2(a) of the

Federal Rules of Criminal Procedure (Count Ten).

C. Sentencing

In his Sentencing Memorandum, appellant proposed a

sentence of no more than twelve years' imprisonment. The

government responded with a recommended sentence of life in prison.

The wide discrepancy was attributable to, inter alia, the parties'

differing assessments of appellant's role in the offense, the drug

quantity for which he should be held responsible, and the need to

-5-
avoid sentencing disparity. Appellant also argued that he should

be sentenced under the Fair Sentencing Act of 2010 ("FSA"), which

reduced the maximum statutory penalty for distributing the amount

of crack cocaine alleged in the indictment (fifty grams) from life

in prison to forty years. See 21 U.S.C. § 841(b)(1)(A)(iii)

(2009); id. § 841(b)(1)(B)(iii) (2011). In addition, he sought

leniency based on his personal circumstances, including his

addiction to alcohol and abuse of prescribed medications.

At the sentencing hearing, appellant's counsel reiterated

the request for a sentence of twelve years, emphasizing appellant's

downward spiral following the tragic death of his brother and his

susceptibility at that time to Belleza's bad influence. Evidence

presented to the court showed that appellant had lived a stable,

productive life until his younger brother's murder when appellant

was in his early twenties.2 Appellant's common-law wife, the

mother of his two sons, stated that "everything changed" after the

brother's murder, which remains an unsolved crime. Appellant's

father reported that his son became "unstable," explaining that he

drank too much, became addicted to a prescription drug, and started

to associate with the wrong crowd.

2
On the day before appellant's sentencing hearing, his
counsel submitted a DVD containing video statements from family
members, including his parents, brother, and sister. The record
contains a transcript of the statements that was prepared by a
certified court reporter.

-6-
 Counsel also emphasized that similarly situated

defendants in other cases had been offered sentences comparable to

appellant's proposed twelve-year term. She further noted that the

government had previously offered to recommend a seventeen-year

sentence in exchange for a guilty plea. Though appellant rejected

that deal, counsel argued that a life sentence was not justified

because "[t]he evidence remains the same."

The prosecutor likewise renewed at the hearing the

government's request for a life sentence, explaining that even a

"conservative" approach to the drug calculation -- considering only

the amount of cocaine and not any other drug -- generated a

guidelines range of 360 months to life. In response to defense

counsel's disparity argument, the prosecutor argued that

appellant's situation differed from that of the individuals cited

for comparison because, unlike them, appellant had not entered into

a plea agreement. The prosecutor emphasized appellant's leadership

activities in the conspiracy, as well as his key role in the effort

to procure false testimony from Delgado.

The prosecutor also brought up an incident involving

appellant that occurred at the prison during his incarceration,

separate from the witness tampering activity and after he had been

charged in the superseding indictment. Along with two other men

(one co-defendant and an unidentified third person), appellant

entered an interview room where a probation officer was meeting

-7-
with another co-defendant and his attorney and demanded to see the

co-defendant's plea agreement. According to the government, the

probation officer and attorney were intimidated by the encounter.

Asserting that appellant had "not shown that anything

that has happened to him from all these years will deter him from

conducting future criminal acts," the government predicted his

likelihood of rehabilitation at "zero to none." Hence, it

recommended the highest guidelines sentence.

Defense counsel responded by again raising the disparity

argument, noting, inter alia, that the court had imposed that day

a twenty-year term on a similarly situated co-defendant (Defendant

No. 4 in the indictment). Counsel also reported that the attorney

involved in the prison episode cited by the government had told her

-- contrary to the government's representation -- that he had not

felt intimidated. Finally, she emphasized that appellant had in

fact shown a capacity for rehabilitation in the previous twelve to

fourteen months and had broken ties to his criminal associates.

In imposing sentence, the district court accepted

appellant's contention that he participated in the conspiracy for

only twenty-four months. Accordingly, the court held him

accountable for the distribution of about twenty-two kilograms of

cocaine. The court stated that it "took under advisement the issue

of the amendments to the Fair Sentencing Act," and explained that

it was "not in any way calculating any base offense level based on

-8-
any crack cocaine." The court thus adopted appellant's proposed

starting base offense level ("BOL") of 34. It increased the BOL by

two levels because the drug dealing occurred near a protected

location, see U.S.S.G. § 2D1.2(a)(1), added another two levels for

the possession of firearms, see id. § 2D1.1(b)(1), and two more for

obstruction of justice, see id. § 3C1.1. The court rejected

appellant's contention that he should be treated as a supervisor of

the drug organization, rather than a leader, and thus added four

levels for appellant's role in the offense. See

U.S.S.G. § 3B1.1(a).3 Finally, the court granted appellant a two-

level downward adjustment for acceptance of responsibility. See

U.S.S.G. § 3E1.1(a). The resulting BOL was 42, and the applicable

criminal history category was I. As a result, the sentencing

guidelines range was 360 months to life imprisonment.

The district court prefaced its sentencing pronouncement

with a summary of appellant's criminal conduct, including his

position as "the second in command of one of the most dangerous

drug trafficking organizations operating in the eastern part of

Puerto Rico," his "principal role in the efforts to get the

3
At appellant's change-of-plea hearing, the court had
described appellant's role in the conspiracy as a "supervisor."
The prosecutor stated at that hearing that appellant was a
supervisor of five or more people and that he "acted as the
lieutenant of the place on behalf of the drug trafficking
organization." Under the guidelines, a supervisory role would
result in a three-level increase in the BOL rather than the four-
level adjustment for a leadership role. See U.S.S.G. § 3B1.1(b).

-9-
Government's main cooperator to recant his testimony," and his

"instrumental" role in smuggling the cell phone to Delgado. The

court also cited the episode at the prison involving the probation

interview:

The Court has also received information
from the probation office that this defendant
along with another co-defendant also attempted
to intimidate another U.S. probation officer,
who was at the time conducting the presentence
interview of a co-defendant in this instant
case at MDC Guaynabo.

The defendant interrupted the interview
and demanded to see the co-defendant's Plea
Agreement, which is confidential and against
Bureau of Prisons' rules and regulations, all
to verify if said co-defendant was cooperating
with the Government.

. . .

Although Counsel says that she
interviewed the lawyer involved in the issue
with the probation officer, as a result of
that incident, it was brought to the attention
of the Court. We held a meeting with all the
judges present, probation office, where the
probation officer who was involved, certainly
related to the Court the events that
transpired and how she was intimidated at the
time she was interviewing another co-defendant
who had pled guilty.

Mr. Zavala was accompanied by another
co-defendant and another person who was not
identified. And he was the main actor of that
incident. It shows that he was still
exercising his position as leader of the drug
trafficking organization, at least of those
that were in prison.

So in order to reflect the seriousness
of the offense, to promote respect for the law
and to provide just punishment for the

-10-
 offense, it is the judgment of this Court the
defendant is hereby committed to the custody
of the Bureau of Prisons to be imprisoned for
the remainder of his natural life.

Immediately following the imposition of sentence, defense

counsel, noting the court's reliance on the ex parte meeting with

the probation officer, asked the court to vacate the sentence so

that she could review any written reports or videotapes of that

meeting. The judge responded that there was no memorialization of

the meeting: "It was just a sit down with the probation officer and

that was it. We were given information as to what transpired at

that time." Counsel's ensuing request for an opportunity to call

the probation officer to the stand was denied.

Near the close of the proceeding, the prosecutor sought

to clarify the court's reference to the incident:

Prosecutor: Counsel . . . [said] that Your
Honor expressly used the incident with the
probation officer . . . to make a judgment of
life imprisonment. And I just want to clarify
for the record, that wasn't the only factor,
the expressed factor for Your Honor's basis.

Court: No, no. I expressed it. And if
you notice that when the latter part of that
statement I said that that shows that he was
still exercising his position as leadership
while in prison over the other co-defendants
in this case that were in prison.
That's the only reason I brought it
forth, to show that he was still a[]head of
that group and he was still exercising [a]
leadership role.

Prosecutor: Thank you, Your Honor.

-11-
 Court: That's the only reason I brought
it up, because I know it doesn't influence the
sentence.

The court did not announce a sentence on each count

separately, and its subsequent written judgment also recorded the

sentence of "[i]mprisonment for the remainder of his natural life"

without linking it to individual counts.4 The forfeiture count,

Count Ten, was dismissed.5 A section of the court's Statement of

Reasons filed as part of the judgment, titled "Additional Facts

Justifying the Sentence in this Case," stated, in part: "The Court

also received information that defendant along with another co-

defendant also attempted to intim[id]ate another U.S. Probation

4
The same language appeared in an amended judgment, which
added (at appellant's request) to the list of institutions the
court recommended to the Bureau of Prisons for appellant's
placement.
5
The Docket entries for the documents titled "Judgment in a
Criminal Case" (No. 2579) and "Amended Judgment in a Criminal Case"
(No. 2788) do list each count separately and in sequence, grouping
the counts with identical supervised release terms and monetary
assessments. Counts Three to Six, for example, are recorded as
follows:

Count(s) 3s, 4s, 5s, 6s, Impr for the remainder of his
natural life. SRT of 10 years. SMA of $100.00[.]

At both the sentencing hearing and in the Judgments themselves,
however, the court imposed an undifferentiated life term. The
clerk's entry cannot add substantively to the court's judgment, and
the government does not argue otherwise. See generally Fed. R.
Crim. P. 32(k)(1) ("In the judgment of conviction, the court must
set forth the plea, the jury verdict or the court's findings, the
adjudication, and the sentence. . . . The judge must sign the
judgment, and the clerk must enter it.").

-12-
Officer, who was at the time conducting the pre-sentence interview

of a co-defendant in this case at MDC-Guaynabo."

II.

Appellant attacks his life sentence on four fronts.

First, he claims it is impermissible to impose a general sentence

rather than giving specific attention to each separate count, and

the general sentence is additionally improper here because none of

the counts authorizes a term of life imprisonment. Second, he

argues that the court committed a due process violation by

improperly relying on adverse factual information obtained in the

ex parte meeting with the probation officer. Third, appellant

asserts that the court erred by failing to explain why it chose to

sentence him at the specific point within the guidelines range, as

required by statute when the range spans more than twenty-four

months. See 18 U.S.C. § 3553(c)(1). Finally, he argues that the

court erred by giving no reason for rejecting his disparity

argument. As noted above, we reach only the first two of these

contentions.

A. Standard of Review

Claims of sentencing error trigger a two-step inquiry:

"we first determine whether the sentence imposed is procedurally

reasonable and then determine whether it is substantively

reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st

Cir. 2011). In evaluating the procedures used, "we review factual

-13-
findings for clear error, arguments that the sentencing court erred

in interpreting or applying the guidelines de novo, and judgment

calls for abuse of discretion." United States v. Leahy, 668 F.3d

18, 21 (1st Cir. 2012) (citations omitted). The substantive

reasonableness of the sentence is reviewed for abuse of discretion,

taking into account the totality of the circumstances. Id. at 24.

Although appellant argues that a sentence of life

imprisonment is unreasonably harsh, his claims are procedural in

nature. Our review thus adheres to the formula set out above for

procedural challenges, modified as appropriate for issues subject

to the plain error standard. See United States v. Fernández-

Hernández, 652 F.3d 56, 71 (1st Cir. 2011) ("'[W]hen a defendant

fails to preserve an objection below, the plain error standard

supplants the customary standard of review.'" (quoting United

States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010)

(alteration in original)).

B. The General Sentence of Life Imprisonment

The government concedes that the imposition of a general

sentence of life imprisonment was improper, as no count in the

indictment supported such a sentence,6 and it agrees that

6
The government asserts in its brief that a general sentence
is not per se unlawful when the term imposed does not exceed the
maximum for one or more counts. The defendant argues that a
general sentence is improper regardless of its propriety for
discrete counts. We need not enter that debate, as the government
concedes that the life sentence imposed here was not authorized for
any of the nine counts.

-14-
resentencing is necessary on most of the counts.7 It argues,

however, that the life term should stand on two of the drug counts

-- Counts One and Five -- because appellant cannot satisfy the

plain error standard with respect to those two counts. Before

examining the competing views of the appropriate remedy for the

acknowledged error, we briefly digress to explain the FSA's effect

on the case.

1. The Fair Sentencing Act of 2010

In Count One of the indictment, appellant was charged

with conspiring to possess for distribution 50 grams or more of

crack, along with varying quantities of other drugs. Count Four

alleged that he in fact possessed, with the intent to distribute,

We note, however, that we have stated that "[t]he proper
procedure" is to "render a separate sentence on each count." See
United States v. Moynagh, 566 F.2d 799, 805 (1st Cir. 1977),
abrogated on other grounds by United States v. Nieves-Burgos, 62
F.3d 431, 436 (1st Cir. 1995). Some courts have adopted
appellant's view, at least in particular cases. See, e.g., United
States v. Ward, 626 F.3d 179, 184-85 (3d Cir. 2010) (finding plain
error and remanding for resentencing where general sentence
exceeded the mandatory maximum on some counts); United States v.
Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005) (remanding for
resentencing where general sentence exceeded the mandatory maximum
on one count because "[i]t is difficult to determine the intention
of the district court").
7
The government agrees that resentencing is necessary on
Count Two (twenty-year statutory maximum), Counts Three & Four
(eighty-year statutory maximum), Count Six (forty-year statutory
maximum), Counts Seven & Eight (twenty-year statutory maximum), and
Count Nine (fifteen-year statutory maximum). Although the
government's brief asserted that resentencing on Count Seven was
unnecessary, the government acknowledged at oral argument that it
had erred in so arguing.

-15-
50 grams or more of crack. At the time the indictment was filed,

a defendant convicted of a distribution offense involving 50 grams

or more of crack was exposed to a maximum statutory term of life

imprisonment. By the time appellant was sentenced, however, the

FSA had reduced the maximum penalty for that amount of crack to 40

years, and it increased the trigger amount for a life sentence to

280 grams or more. See 21 U.S.C. § 841 (b)(1)(B)(iii),

(b)(1)(A)(iii).

As described above, appellant argued in his sentencing

memorandum that he was entitled to be sentenced under the FSA, with

its reduced penalty for the charged amount of crack. The Supreme

Court recently agreed, holding that FSA penalties apply to

offenders, such as appellant, who were sentenced after the statute

went into effect. See Dorsey v. United States, 132 S. Ct. 2321,

2335-36 (2012). Hence, at the time of appellant's sentencing, the

crack cocaine averments in the indictment supported a maximum

sentence of forty years, doubled to eighty years because the drug

dealing took place in proximity to a school and public housing

project. See 21 U.S.C. § 860(a).

As it turned out, the district court explicitly

disclaimed reliance on any amount of crack cocaine in imposing

sentence and "took under advisement" the impact of the FSA. The

government did not object to the court's approach. We thus proceed

-16-
with our analysis without taking into account the crack cocaine

allegations.

2. Plain Error

Where a defendant fails to present a claim of error to

the district court, as is the case with appellant's challenge to

the general life term, he must satisfy a demanding four-prong

inquiry to obtain relief. To demonstrate reversible plain error,

a defendant must show that (1) an error occurred, (2) the error was

clear and obvious, and it not only (3) affected the defendant's

substantial rights but also (4) "'impaired the fairness, integrity,

or public reputation of the judicial proceedings.'" United States

v. Mitrano, 658 F.3d 117, 124 (1st Cir. 2011) (quoting United

States v. González-Castillo, 562 F.3d 80, 82 (1st Cir. 2009)). The

government asserts that, even if appellant can satisfy the first

three requirements with respect to Counts One and Five, he cannot

satisfy the fourth prong.

As we have described, Count One alleges that appellant

conspired to distribute fifty or more grams of cocaine base, 500

grams or more of cocaine, 100 grams or more of heroin, and

measurable amounts of marijuana, all within 1,000 feet of a public

housing project or public school. Count Five alleges that

appellant aided and abetted in the distribution of 500 grams or

more of cocaine, also within 1,000 feet of a housing project or

public school. The statutory maximum penalty for the crimes

-17-
alleged in the two counts, which is linked to drug quantities, is

eighty years. See 21 U.S.C. §§ 841(b)(1)(B), 860 (providing an

initial forty years for the specified quantity, doubled because of

the proximity to a protected location). The government theorizes,

however, that appellant may fairly be sentenced to the statutory

maximum that applies to larger quantities of drugs because the

court found him responsible for twenty-two kilograms of cocaine.

Based on that amount of cocaine, appellant would be subject to a

minimum term of ten years and a maximum term of life imprisonment.

See 21 U.S.C. § 841(b)(1)(A)(ii).

In advocating for the validity of a sentence based on the

twenty-two kilograms, the government relies on the Supreme Court's

decision in United States v. Cotton, 535 U.S. 625 (2002). Applying

plain error review, the Court in Cotton upheld sentences that were

unlawful under Apprendi v. New Jersey, 530 U.S. 466 (2000), because

the drug quantities used to calculate the sentence had not been

alleged in the governing indictment. Cotton, 535 U.S. at 632.

Although the original indictment had alleged a conspiracy to

distribute five kilograms or more of cocaine and fifty grams or

more of crack -- quantities that exposed the defendants to life

imprisonment, id. at 627, 633 n.3 -- the drug amounts were omitted

from the superseding indictment as permitted by then-prevailing

precedent, id. at 628. Following guilty verdicts, the court

imposed sentences of thirty years and life imprisonment based on

-18-
undisputed quantities of crack far in excess of the statutory

threshold alleged in the original indictment. Id. The defendants

did not object based on the omission of quantity allegations in the

indictment.

The Supreme Court held that, in the circumstances of that

case, the omission of drug amounts from the superseding indictment

"did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings." Id. at 632-33. The Court

noted the "overwhelming" and "essentially uncontroverted" evidence

that the conspiracy involved at least fifty grams of cocaine base,

id. at 633 (internal quotation marks omitted), and it concluded

that "[s]urely the grand jury, having found that the conspiracy

existed, would have also found that the conspiracy involved at

least 50 grams of cocaine base," id.

We disagree that Cotton leads to affirmance of the life

sentence imposed in this case. In addition to the problematic

general nature of the sentence here, a critical distinction between

the cases is that the grand jury in Cotton had originally charged

a drug quantity consistent with the district court's judgment. The

omission of a drug quantity in the superseding indictment did not

signify a change in the prosecution's or grand jury's assessment of

the case. Rather, it reflected the state of the law at the time,

before the Supreme Court held that "'any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

-19-
submitted to a jury'" and charged in the indictment. Id. at 627

(quoting Apprendi, 530 U.S. at 490, 476); see also Brief for the

United States, United States v. Cotton, 535 U.S. 625 (2002) (No.

01-687), 2002 WL 264766, at *46 ("[T]here is no reason to suppose

that the grand jury meant to retract its earlier findings (which,

under the prevailing view of the law, were not required in an

indictment)."). In Cotton, therefore, the Court carried out the

original charging decision when it rejected the defendants' claim

of plain error. Id. at 634; see also United States v. Cotton, 261

F.3d 397, 414 (4th Cir. 2001) (Wilkinson, J., dissenting) (noting

that "[t]here can be no doubt that had the prosecution been aware

of the [subsequent change in the law], it would have made certain

that the superseding indictment mirrored the initial indictment"),

rev'd, Cotton, 535 U.S. at 625. Moreover, when they were indicted

for a second time, the Cotton defendants, in light of the original

indictment, would have understood that the charged conspiracy

exposed them to the lengthy sentences ultimately imposed. On

appeal, they were seeking to benefit from an unanticipated change

in the law.

Here, by contrast, there was no flaw in the indictment

resulting from a subsequent change in the law: the grand jury did

choose a drug quantity and thereby set specific, statutorily

prescribed limits on the sentence. The problem, instead, is that

the district court imposed a term of imprisonment that exceeds the

-20-
statutory maximum for the drug quantity selected by the grand jury.

As outlined above, the cocaine amount charged in Counts One and

Five -- "500 grams or more" -- triggered a sentence under 21 U.S.C.

§ 841(b)(1)(B)(ii) of "not . . . less than 5 years and not more

than 40 years," doubled under § 860 to a maximum of eighty years.

Affirming the sentence here would thus reduce the drug-quantity

element of the indictment to an irrelevancy. Unlike in Cotton, it

would mean disregarding, not carrying out, the grand jury's

judgment.8

Moreover, the government's position that the life terms

should stand on Counts One and Five is incompatible with the

procedure needed to correct the unlawful general sentence. Where

the district court's obligation is to individually consider the

appropriate punishment for each count, it would be unseemly for us

to permit -- indeed, to direct -- an unlawful term of life

8
Because the superseding indictment in this case alleged an
amount of crack that could have triggered a life sentence at the
time the indictment was filed, the case would have borne more of a
resemblance to Cotton if the quantity of crack had figured into
appellant's sentencing calculus. The district court, however,
explicitly excluded crack from consideration in sentencing.
Appellant's pre-FSA exposure to a life sentence based on the crack
allegations has no relevance to his exposure based on the quantity
of regular cocaine.
Counsel's failure to object to the life term appears at least
partially attributable to her focus on the Guidelines and the FSA's
impact. She stated at the hearing that, even under the FSA,
appellant "would still be in a life category." Evidently, neither
counsel nor the court realized that life imprisonment exceeded the
statutory maximum once the crack was dropped from the sentencing
calculus.

-21-
imprisonment on two of the counts. This overriding sentencing flaw

did not exist in Cotton.

In these circumstances, we reject the government's

assertion that the life term of imprisonment survives the plain

error test. Particularly in light of its severity, we conclude

that "the fairness and integrity of the criminal justice system,"

Cotton, 535 U.S. at 634, would be compromised if we were to enforce

an unlawful life sentence that the government declined to seek at

the outset of the case, when it could have done so lawfully. See

Jones v. United States, 526 U.S. 227, 243 n.6 (1999) ("[U]nder the

Due Process Clause of the Fifth Amendment and the notice and jury

trial guarantees of the Sixth Amendment, any fact (other than prior

conviction) that increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and proven beyond a

reasonable doubt.").

We thus conclude that the district court's plain error in

imposing a general sentence of life imprisonment on Counts One

through Nine of the indictment requires us to vacate that sentence

and remand for reconsideration of the sentence on every count.

That determination arguably makes it unnecessary for us to consider

at this time appellant's other claims of error, which relate to the

manner in which the district court handled the original sentencing

proceeding. One of those issues warrants our attention, however,

to ensure that it does not recur during resentencing. Importantly,

-22-
that discussion will demonstrate that the fairness of the original

sentencing proceeding was compromised. Hence, the district court

will need to consider the appropriate sentence anew, rather than

remedying the general sentence problem simply by specifying a term

for each count. We therefore turn to the second challenge.

C. Ex Parte Information

Appellant asserts that the district court erred in fixing

his sentence by considering information obtained during an ex parte

meeting with the probation department. The record is unclear about

the nature of the ex parte gathering and who was present, though

the participants apparently included multiple judges and the

probation officer involved in the incident in which appellant and

two others demanded to see a co-defendant's plea agreement. The

record does show that the district court concluded that appellant

played the lead role in the encounter, and the court later factored

that conclusion into its sentencing decision.

A district court tasked with imposing an appropriate

sentence "enjoys 'broad discretion in the information it may

receive and consider regarding [a] defendant and his conduct.'"

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

(alteration in original) (quoting United States v. Curran, 926 F.2d

59, 61 (1st Cir. 1991)); see also 18 U.S.C. § 3661 ("No limitation

shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a

-23-
court of the United States may receive and consider for the purpose

of imposing an appropriate sentence."). Under Federal Rule of

Criminal Procedure 32, however, the court is required to provide

the defendant with "'a meaningful opportunity to comment on the

factual information on which his or her sentence is based.'"

Rivera-Rodríguez, 489 F.3d at 53-54 (quoting United States v.

Berzon, 941 F.2d 8, 10 (1st Cir. 1991)); see also Irizarry v.

United States, 553 U.S. 708, 715 (2008) ("Sound practice dictates

that judges in all cases should make sure that the information

provided to the parties in advance of the hearing, and in the

hearing itself, has given them an opportunity to confront and

debate the relevant [sentencing] issues."); Fed. R. Crim. P.

32(i)(1)(C).9 The Sentencing Guidelines likewise require that

defendants be given "an adequate opportunity" to address "any

factor important to the sentencing determination [that] is

reasonably in dispute." See U.S.S.G. § 6A1.3(a).

The process here was inadequate. Indeed, the government

does not meaningfully argue otherwise, largely confining its

briefing on this issue to a harmless error analysis.10 Appellant

9
Rule 32(i)(1)(C) states that the court "must allow the
parties' attorneys to comment on the probation officer's
determinations and other matters relating to an appropriate
sentence."
10
The government makes a listless attempt to justify the ex
parte session on the ground that probation officers are "'regarded
as an extension of the court who provide[] the sentencing judge
with a wide range of information about the defendant and the

-24-
was alerted to the ex parte meeting for the first time during the

court's sentencing pronouncement, and he thus had insufficient

notice and no opportunity to develop a response to any adverse

information communicated there. See Berzon, 941 F.2d at 18

("'Th[e] right to be heard has little reality or worth unless one

is informed.'" (alteration in original) (quoting Burns v. United

States, 501 U.S. 129, 136 (1991) (quoting Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950)))).

Importantly, it appears that defense counsel also first

learned at the sentencing hearing that appellant had been depicted

as "the main actor" in the prison episode.11 That characterization

of appellant's role was prominent in the district court's oral

offense.'" Brief at 50 (quoting United States v. Johnson, 935 F.2d
47, 49 (4th Cir. 1991)). Here, however, the information
communicated ex parte was not from a "neutral, information-
gathering agent of the court," Johnson, 935 F.2d at 50, but from a
participant in an incident involving the defendant. The precedent
the government invokes is thus wholly inapt here.
11
So far as the record shows, the first reference to the
incident itself was in the government's response to appellant's
objections to the presentence report. Addressing appellant's
argument that he was improperly labeled an "enforcer" for the drug
trafficking organization, the government stated in a footnote:

Defendant need not have used a firearm or killed someone
in order to be an enforcer. . . . Interestingly so, not
having learned his lesson and proving that he was in fact
an enforcer, defendant was involved in intimidating a
coconspirator, the coconspirator's attorney and a
probation officer during the probation officer's PSR
interview of a coconspirator in this case.

Dockt. No. 2544, at 3 n.2.

-25-
explanation of the sentence. Both in its initial remarks and

later, when the prosecutor attempted to establish that the

encounter was not the sole justification for the life sentence, the

court invoked the incident as evidence that appellant was "still

exercising his position as [a] leader of the drug trafficking

organization." The court also cited the incident in its written

Statement of Reasons.12

Appellant was thus improperly denied an opportunity to

respond to unfavorable information considered by the court in

sentencing him. As appellant is otherwise entitled to a complete

resentencing, we need not examine the government's assertion that

the court would have imposed the same sentence regardless of the

undisclosed information, and that any such error was therefore

harmless.

On remand, if the district court again chooses to

consider the information obtained at the meeting in its sentencing

determination, appellant must be given notice of what was

communicated about his conduct and an opportunity to respond.

12
The record leaves no doubt that the undisclosed information
influenced the court's deliberations, whether or not it affected
the actual term imposed. We note one respect in which it may have
had a direct impact. At appellant's change-of-plea hearing, both
the prosecutor and court described appellant as a supervisor of the
drug trafficking organization, a role that would have triggered a
three-level upward adjustment in his BOL. At sentencing, the court
imposed a four-level role-in-the-offense adjustment based on his
status as a "leader" of the enterprise. The four-level adjustment
had been recommended in appellant's PSR.

-26-
D. Explanation

Appellant's two remaining challenges both concern the

district court's failure to explain the sentence it imposed.

Appellant contends that the court (1) did not adequately explain

its reasons for choosing the highest point of the guidelines range,

as required by 18 U.S.C. § 3553(c)(1),13 and (2) improperly failed

to give reasons for rejecting his detailed disparity argument.

These were both matters of consequence, particularly given the

severity of the sentence imposed. However, having already

established the need for resentencing, we decline to examine these

contentions.

III.

We thus hold that the general sentence of life

imprisonment imposed on appellant must be vacated because it

exceeds the statutory maximum on each of the nine counts. We also

must consider whether the remand should be to the same or a

different judge, in light of the sentencing judge's improper

reliance on ex parte information concerning the prison incident.

See United States v. Craven, 239 F.3d 91, 103 (1st Cir. 2001);

Berzon, 941 F.2d at 20.

Although the content of the ex parte meeting could be

considered in the resentencing if it were disclosed to appellant

13
Section 3553(c)(1) requires the trial judge to explain its
reasons for selecting a sentence at a particular point within a
range exceeding twenty-four months.

-27-
and he were given the opportunity to respond, we are concerned that

any such follow-up will necessarily occur long after the discussion

took place. An accurate recounting of the event may no longer be

possible. In addition, the district court's ability to segregate

the information it obtained at the meeting would almost certainly

be diminished with the passage of time. We previously have noted

that it would be "difficult, if not impossible, for a judge, no

matter how sincere, to purge [ex parte] information from her mind

-- and, equally, to maintain the perception of impartiality."

Craven, 239 F.3d at 103. That concern is apropos here. The

maximum sentence on some counts remains very high -- 80 years --

and "'both for the judge's own sake, and the appearance of

justice,'" we conclude that remand to another judge is advisable.

Berzon, 941 F.2d at 20 (quoting Mawson v. United States, 463 F.2d

29, 31 (1st Cir. 1972)).

We therefore vacate appellant's sentence and remand for

resentencing before a different judge.

So ordered.

-28-