UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-1806
UNITED STATES OF AMERICA,
Appellant,
v.
FABIAN CARLOS MUNIZ,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Selya and Boudin, Circuit Judges,
and Carter,* District Judge.
Geoffrey E. Hobart, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief, for
the United States.
John C. Doherty for the appellee.
March 8, 1995
*Chief Judge, U.S. District Court for the District of Maine,
sitting by designation.
SELYA, Circuit Judge. For better or worse, the days
SELYA, Circuit Judge.
are long since past when federal district judges wielded
virtually unfettered discretion in sentencing criminal
defendants. The sentencing guidelines are controversial but
they have the force of law and, therefore, command the allegiance
of the courts. Judges, who enforce the laws when others
transgress them, must be sensitive to their own responsibility
not to be seen as placing themselves above the law. This case
exemplifies the importance of that principle.
I. THE ROAD TO ARREST
I. THE ROAD TO ARREST
Because the underlying conviction resulted from a
guilty plea, we draw the facts from the uncontested portions of
the Presentence Investigation Report (PSI Report) and the
transcript of the sentencing hearing.1 See United States v.
Garcia, 954 F.2d 12, 14 (1st Cir. 1992); United States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991).
All the events mentioned, including court proceedings,
occurred in 1994 unless otherwise specifically indicated. Early
that year, agents of the federal Drug Enforcement Administration
(DEA) arrested a married couple, Omer and Camille Belle, in the
course of a narcotics investigation. The Belles soon began to
peal; they told the federal agents that they had purchased
kilogram quantities of cocaine from defendant-appellee Fabian
1In this case, much of the evidence is beyond hope of
contradiction. The authorities tape-recorded the various
telephone conversations in which the defendant participated and
fitted the hotel room in which the denouement occurred with a
video camera and a microphone.
2
Carlos Muniz on a steady basis for two years (most recently in
December of 1993), and that Muniz also had made similar sales to
at least two other individuals.
The Belles agreed to cooperate in a sting operation
directed against Muniz. On February 4, Camille Belle called
Muniz and informed him that a friend was interested in acquiring
three to four kilograms of cocaine. Muniz replied that the
quantity was "no problem" and quoted a price of $23,500 per
kilogram. When Camille sought reassurance that the drugs would
be forthcoming, Muniz reiterated that "as long as they got [the
funds], it's not a problem."
Later that evening, Omer Belle called and told Muniz
that the would-be buyer wanted to purchase five kilograms of
cocaine. Muniz scheduled the transaction for the following day,
but voiced some uncertainty about whether he could fill the full
order in one fell swoop, telling Omer: "I don't know if I can
get . . . as many sets for tomorrow." Asked how many sets (a
code word for kilograms of cocaine) he definitely could provide,
and when, Muniz replied: "Two or three maybe and the rest for
the next day." At a subsequent point in the conversation, Omer
again inquired about how many kilograms would be delivered the
following day, and Muniz responded, "Two . . . or three maybe, I
don't know, I'm not sure." The two men agreed to meet the next
afternoon, February 5, at an inn in Sturbridge, Massachusetts.
Muniz reaffirmed that although five sets might not be immediately
available, he would fill the entire order with reasonable
3
celerity: "It could be two or three [kilograms] tomorrow and do
the rest the next day."
On February 5, the men spoke again by telephone. In
this conversation, Muniz emphasized that the customer needed to
bring enough money to pay for as many as three sets. At
approximately 8:00 p.m. on the same date, Muniz and a
confederate, Juan Carlos Villar, met Omer Belle at the appointed
place. The trio proceeded to a room where the customer (in
reality an undercover agent) waited. Once inside, Muniz handed
the agent two kilograms of cocaine. When the agent said, "I
thought it was three," Muniz replied, "No, two today, three
tomorrow," and volunteered: "If you want three tomorrow, I can
bring three tomorrow, no problem." Following a further
discussion regarding prices and possible future transactions,
Muniz again assured the agent that his sources had "promised
three for tomorrow, no problem." At that point, law enforcement
officers arrested both Muniz and Villar.2
II. THE ROAD TO SENTENCING
II. THE ROAD TO SENTENCING
On March 2, a federal grand jury charged Muniz with
possessing cocaine, intending to distribute it, 21 U.S.C.
841(a)(1), conspiracy to distribute, 21 U.S.C. 846, and aiding
and abetting, 18 U.S.C. 2. Shortly thereafter, the government
filed a notice memorializing its position that, for the purpose
of determining Muniz's offense level under the federal sentencing
2The grand jury indicted Villar along with Muniz. Villar,
however, is not a party to this appeal.
4
guidelines, the prosecution would seek to hold him accountable
for five to fifteen kilograms of cocaine, thus triggering a ten-
year minimum mandatory sentence on the conspiracy count under 21
U.S.C. 841(b)(1)(A)(ii). The notice also admonished that a
five-year minimum mandatory sentence applied to the other count
under 21 U.S.C. 841(b)(1)(B)(ii).
On March 29, Muniz pled guilty to both counts of the
indictment. In the plea contract, the parties agreed to disagree
anent length of sentence; the government continued to advocate a
ten-year sentence, while Muniz asserted that only a five-year
minimum applied because his case involved well under five
kilograms of cocaine. At the change-of-plea hearing, both
parties stuck to their guns. The government reiterated that
Muniz should be held responsible for at least five kilograms of
cocaine because he agreed to deliver that amount to the
undercover agent. Muniz, however, dismissed any statements he
had made about undelivered quantities as mere "puffing or
exaggerating," and urged that he should only be held accountable
for the amount of contraband actually delivered.
The Probation Department sided with the government. In
espousing this view, the PSI Report alluded not only to the
events occurring on February 4 and 5 but also to the post-arrest
statements of Muniz, Camille Belle, and Villar intimating that
they had dealt with each other on a regular basis in the past.
Muniz filed a number of objections to the PSI Report. He
continued to debunk statements he had made about his ability to
5
procure the full five kilograms of cocaine as unfounded
rodomontade, and argued that he had no means of obtaining so huge
a quantity. In respect to past dealings, Muniz admitted that he
had delivered 125 grams of cocaine to Camille Belle in late 1993
but denied having sold drugs on any other occasion. Not to be
outdone, the government filed an affidavit signed by a DEA agent,
Steven Story, corroborating many of the facts recited in the PSI
Report.
III. THE IMPOSITION OF SENTENCE
III. THE IMPOSITION OF SENTENCE
In the typical narcotics case, the sentencing
guidelines link drug quantity to sentence length. See, e.g.,
United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993)
("In drug-trafficking cases under the sentencing guidelines,
sentences are largely quantity-driven."), cert. denied, 114 S.
Ct. 2714 (1994). But ascertaining drug quantity is not always a
simple matter of weighing and sorting. When the district court
sentenced Muniz on June 15, 1994,3 the parties waged a pitched
battle concerning the three kilograms of cocaine that Muniz had
agreed to supply but had not delivered. A five-year difference
in the minimum mandatory sentence depended on whether these three
kilograms did or did not figure in the drug quantity attributable
3The November 1993 edition of the federal sentencing
guidelines applies to this case. See United States v. Aymelek,
926 F.2d 64, 66 n.1 (1st Cir. 1991) (explaining that, absent ex
post facto concerns, a sentencing court must consult the
guidelines in effect at the time of sentencing). Thus, all
references herein are to that version.
6
to Muniz.4
The parties agree for purposes of this appeal that the
key to unlocking the drug quantity puzzle here can be found in an
application note that states in pertinent part:
In an offense involving negotiation to
traffic in a controlled substance, the weight
under negotiation in an uncompleted
distribution shall be used to calculate the
applicable amount. However, where the court
finds that the defendant did not intend to
produce and was not reasonably capable of
producing the negotiated amount, the court
shall exclude from the guideline calculation
the amount that it finds the defendant did
not intend to produce and was not reasonably
capable of producing.
U.S.S.G. 2D1.1, comment., n.12 (Nov. 1993). We have interpreted
application note 12 as directing that the amount of drugs under
negotiation must be considered in determining the applicability
of a minimum mandatory penalty unless the sentencing court
supportably finds both that the defendant did not intend to
produce the additional quantity of narcotics, and that he lacked
the capacity to do so. See United States v. Pion, 25 F.3d 18, 25
(1st Cir.), cert. denied, 115 S. Ct. 326 (1994). Phrased another
way, if the court finds by a preponderance of the evidence in
regard to an aborted narcotics transaction that the defendant had
either the intent or the capacity to deliver the full amount of
the drugs under negotiation, then that amount must be included in
4Although the government urged the district court to
consider other transactions, e.g., Muniz's prior sales of cocaine
to the Belles, as relevant conduct includable in the drug
quantity calculation, the court rejected this exhortation. The
government has not appealed the court's refusal to hold Muniz
responsible for other relevant conduct.
7
the drug quantity calculation.
Here, Muniz contended that the evidence failed to show
either intent or capacity. In an effort to glean the material
facts, the district court asked Agent Story to testify,
questioned him sua sponte, and allowed defense counsel to cross-
examine him. Near the end of the disposition hearing, the court
and the Assistant United States Attorney (AUSA) discussed the
holding in Pion and its relevance to Muniz's case:
[AUSA]: But even if the Court were to find
[AUSA]:
that [Muniz] wasn't reasonably capable of
producing [the three additional kilograms],
in this case because he intended to produce
it, under Pion, the minimum mandatory still
applies.
THE COURT: So you only need one of those
THE COURT:
factors?
[AUSA]: That's correct, your Honor.
[AUSA]:
THE COURT: Well, . . . I'm not enthusiastic
THE COURT:
about this type of a sentence, because I grew
up in an era where you sentence under the
specific terms of the indictment. But I'm
constrained to find, unless [defense counsel]
can persuade me to the contrary, that there
is sufficient evidence that he intended to
produce the three additional kilograms and
that he was, in fact, capable of so doing.
When defense counsel suggested that it "seem[ed] logically
contradictory to intend to do something and not be capable of
doing it," the district judge responded: "No, I said both. . . .
I'm constrained to find that he intended to do it and was capable
of so doing." The judge then explained his use of the phrase
"constrained to find," stating:
. . . I don't like to do it because I'd
rather sentence by the terms of an
8
indictment, namely, two kilograms. But the
law [provides] that if an intention is made
to produce further kilograms and that the
defendant is capable of so doing, that enters
into the calculus as to the weight of the
cocaine which is the basis for the offense.
And I have to so find.
After a further exchange with defense counsel, the
judge indicated that he had ruled, and switched the subject:
"The finding having been made, what is the recommendation of the
government?" Not surprisingly, the AUSA recommended a ten-year
sentence. Muniz's lawyer then made an impassioned plea for
reconsideration of the court's findings, attacking the
credibility of Camille Belle (who had provided information to the
DEA about Muniz's resources as a drug supplier) and stressing the
perceived unfairness of a ten-year sentence in light of Muniz's
previously unblemished record. Upon hearing the defendant's
allocution in which the defendant shed no additional light on
the issues of intent and capability, but merely admitted his
guilt and beseeched the court "not [to] be too tough on me" the
court passed sentence:
After review of the entire evidence in this
case, I think a fair sentence, in view of the
statement that has been made by the
defendant, I'm going to base my sentence on
the hard evidence of the two kilograms of
cocaine. Therefore, under the statute, I'm
going to impose a term of five years'
imprisonment, five years' supervised release,
and $100 special assessment.
This man doesn't appear to have any
record whatsoever. He doesn't appear to have
made significant amounts of money in this
business of cocaine trafficking. I cannot
believe that he's a major dealer, and it's
unconscionable for me to impose a sentence of
9
ten years on this individual. I think five
years is a fair and just sentence, and that
will be the sentence imposed.
The court subsequently issued a written judgment that extended
well beyond its remarks at sentencing. The judgment stated in
relevant part:
The Court did not impose a mandatory sentence
of 120 months, as it was not sufficiently
satisfied, on the basis of the evidence
introduced at the sentencing hearing and on
the defendant's denial, that the defendant
would have actually transferred three
additional kilograms of cocaine on the next
day, the factor necessary to the mandatory
imposition of an additional 60-month term of
imprisonment.
The government now appeals the imposition of a five-
year sentence.
IV. DISCUSSION
IV. DISCUSSION
The prosecution argues that the sentence imposed is
thrice flawed. It says (1) that the court, having found both
that Muniz intended to deliver the full amount under negotiation
and that he possessed the capability to do so, erred in not
including the extra three kilograms of cocaine in the drug
quantity calculation as required by application note 12; (2)
that, in view of the record evidence, any contrary finding that
Muniz lacked the requisite intent, or that he lacked the
requisite capability, or both would be clearly erroneous, and,
therefore, without legal force; and (3) that the court, as
evidenced by its written judgment, misinterpreted and misapplied
the applicable legal standard. We approach these contentions
mindful that a district court's findings of fact at sentencing
10
are reviewed deferentially under the "clearly erroneous"
standard. However, the court's interpretation of the guidelines
and its application of rules of law to the discerned facts are
reviewed de novo. See United States v. Brewster, 1 F.3d 51, 54
(1st Cir. 1993); United States v. St. Cyr, 977 F.2d 698, 701 (1st
Cir. 1992).
We address the government's claim as an
undifferentiated whole, beginning with those aspects of it that
require interpretation of the comments uttered from the bench at
the time of sentencing. The government understands the court to
have made definite findings of fact signifying that Muniz
intended to deliver an additional three kilograms of cocaine on
February 6, and that he had the capability to do so. Since the
court viewed the facts in that way, the government posits, it
obviously misread application note 12, or otherwise misapplied
the law, in not attributing the weight under negotiation to Muniz
for sentencing purposes. And, moreover, the government's thesis
runs, any other findings would be so clearly erroneous that a
reviewing court would be duty bound to set them aside.
The defendant articulates a somewhat different
understanding of what transpired. Though he concedes that the
district court initially found against him on both the intent and
capacity prongs of the application note 12 paradigm, he asserts
that the court reconsidered and, on reflection, found
insufficient evidence of those elements. Because the nisi prius
roll supports the reconsidered findings, Muniz asseverates, the
11
court acted lawfully in sentencing him based only on the two
kilograms of cocaine that he actually delivered, and nothing
more.
On this scumbled record, we cannot fully endorse either
party's view. While the district court was apparently persuaded
the first time around that Muniz had both the intent and the
capability to deliver the promised three kilograms of cocaine,
the court's words have a cryptic quality and its findings if we
can call them findings at all are sufficiently recondite that
they give us pause. To add to the confusion, the court's abrupt
about-face undermines our confidence in its earlier statements.
Having refused to hunt with the hounds, we likewise
refuse to hold with the hare. Although Muniz's claim that the
court reconsidered its initial findings and reversed its field is
not entirely without record support Judge Harrington's
statement that his decision would be based on "hard evidence" of
two kilograms of cocaine, made on the heels of defense counsel's
request for reconsideration and coupled with the imposition of a
five-year (rather than a ten-year) sentence, allows an inference,
strained as it may be, that the judge rethought the issues of
intent and capacity and came out the other way it withers under
close scrutiny. The judge never explicitly disclaimed his
earlier findings; he offered no reasoned justification for the
sudden turnaround; and he made no supportive findings of
subsidiary fact. Reading the record with an unjaundiced eye, the
judge's 180-degree turn defies rational explanation. We
12
conclude, therefore, that the court's findings are, on balance,
so inexplicit that the sentence cannot plausibly rest on them.
Cf. United States v. Tavano, 12 F.3d 301, 305 n.5 (1st Cir. 1993)
(suggesting that, when there is significant uncertainty about the
meaning of the sentencing judge's statements, the ends of justice
are usually best served by starting afresh); United States v.
Aguilera-Zapata, 901 F.2d 1209, 1216 (5th Cir. 1990) (vacating
sentence where record unclear as to whether sentencing court
applied the correct legal standard).
Nor can the sentence rest on the written memorandum
prepared and filed by the district judge as a part of the
judgment after he had sentenced the defendant. We cannot
conveniently overlook the prior proceedings, but must evaluate
the written document though it deviates in at least one salient
respect from what the court said orally as part and parcel of
the entire sentencing record.5 Viewed in that context, the
written explanation is insufficient to overcome the deficiencies
we have noted. More importantly, the written judgment is
infected by a virulent error of law, and, thus, cannot be
accorded substantial weight.
Explaining the court's error can best be accomplished
5Where, as in this case, the district court's oral
expression of its sentencing rationale varies materially from its
subsequent written expression of that rationale, appellate courts
have tended to honor the former at the expense of the latter.
See, e.g., United States v. Drummey, 949 F.2d 997, 997-98 (8th
Cir. 1991). Because we find that neither the court's oral nor
written findings adequately support the sentence, we need not
address the incipient problems posed by the inconsistencies
between them.
13
by taking a close look at our opinion in Pion. There, the
defendant had agreed to sell six kilograms of cocaine in two
installments. Pion, 25 F.3d at 20. The DEA arrested him after
he had tendered the first (three-kilogram) installment. See id.
At sentencing, the judge imposed a ten-year minimum mandatory
sentence after finding that, though Pion intended to deliver the
second three-kilogram installment, he was not reasonably capable
of doing so. See id. at 24-25. Pion assigned error to the
inclusion of the undelivered quantity on the ground that, as the
sentencing court had found, he lacked the capability to secure
it. We rejected that argument, holding that application note 12
"requires the sentencing court to include `the weight under
negotiation in an uncompleted distribution' unless it finds that
`the defendant did not intend to produce and was not reasonably
capable of producing the negotiated amount.'" Id. at 25 (citing
application note 12). Consequently, Pion's claim failed "because
neither conjunctive clause in note 12 can be ignored." Id.
In the document under consideration here, the district
judge wrote that, based on the evidence, he "was not sufficiently
satisfied . . . that the defendant would have actually
transferred three additional kilograms of cocaine on the next day
. . . ." He described this as "the factor necessary" to trigger
the imposition of the higher (ten-year) minimum mandatory term of
imprisonment. As a matter of law, the judge erred: as Pion
teaches, whether a defendant would actually have transferred
additional drugs is not the relevant inquiry.
14
By focusing on the factual probability of delivery, the
lower court turned the proper rule inside out. Pion stands for
the proposition that a defendant's subjective intent to deliver
drugs under negotiation is sufficient to trigger their inclusion,
even if the defendant's intent is stymied by objective
impossibility. See id. The judge's reasoning flies directly in
the teeth of this proposition, and, in the bargain, contradicts
the plain language of application note 12.
Although what we have said to this point explains the
need to vacate Muniz's sentence, we feel obliged to comment on a
larger issue. Judges are free, of course, to express their views
about the wisdom of guideline sentencing, and many have chosen to
do so. But when such value judgments occur in the context of a
judicial proceeding, it is incumbent upon the judge to avoid the
further (and quite different) impression that distaste has
crossed the line into disregard. The circumstances of the case
at bar underscore this danger.
When, for example, the AUSA reminded the district judge
that our opinion in Pion was on all fours, the judge stated:
I understand what the First Circuit said.
What I have problems with is that when
somebody is charged in an indictment [with] a
specific amount and then talk that they're
going to produce something else but they
don't because they're arrested, and then you
come to court, . . . and you ask for a
sentence based on a fact that three
additional kilograms [would be] delivered,
it's a very uncomfortable position to be
placed in. It seems to me that if the
government wants to charge somebody for five
kilograms, then why not grab him after they
produce them, rather than arresting him after
15
two and then asking for five additional years
for something that he hasn't done.
Moments later, the judge repeated these sentiments.6 Moreover,
the court said much the same thing in announcing its rulings
rejecting the government's proffer of relevant conduct evidence.
See supra note 4.
It is not these statements in the abstract that present
the problem; rather, it is the context they provide for the
district court's judicial actions. Courts do sometimes change
positions; but to revise findings, without direct explanation or
effort at support, after substantially criticizing the
controlling legal rules, can create a damaging impression. In
this case, that unhealthy circumstance also permitted attention
to be drawn to other cases in which the court of appeals rebuked
the district judge for failure to adhere to the guidelines.
See, e.g., United States v. Bennett, 37 F.3d 687 (1st Cir. 1994);
United States v. Norflett, 922 F.2d 50 (1st Cir. 1990); United
States v. Williams, 891 F.2d 962 (1st Cir. 1989).
It is vital to the rule of law that congressional
commands, so long as they are constitutionally appropriate, be
honored. Federal courts, in particular, are not at liberty to
6The court confided:
I don't like to sentence someone for five
additional years on weight that was not
transmitted or transferred or produced, the
weight of the narcotic, something that was
promised, especially if it's a double
sentence. If it was asking for a year, maybe
you could sallow it, but you're going from
five to ten years, mandatory.
16
disregard lawful directives of Congress (or the Sentencing
Commission for that matter) simply because those directives
conflict with the judge's personal notions of fairness. In the
last analysis, it is crucial to public confidence in the courts
that judges be seen as enforcing the law and as obeying it
themselves.
This principle applies with full force to the
guidelines which, in substance, are commands to judges.7
Constitutional defects aside, "when . . . the legislative trumpet
sounds clearly, courts are duty bound to honor the clarion call."
United States v. Jackson, 30 F.3d 199, 204 (1st Cir. 1994).
V. THE REMEDY
V. THE REMEDY
We must yet decide how best to handle a situation
riddled by error. Mindful, as we are, of both the high stakes
and the abundant ambiguities, we decline the parties' invitations
to speculate about what the court did or did not mean. We
likewise decline to insert ourselves into the breach by
attempting, on a cold record, to find the facts from scratch. In
the end, the course of prudence beckons. We are left with no
principled choice but to vacate the defendant's sentence and
remand for a completely new sentencing hearing. This alternative
is especially attractive here because of the strong possibility
that the judge's antipathy for the sentencing regime either
7Of course, this principle applies with equal if not greater
force in cases to which minimum mandatory sentences attach. In
those situations, Congress, by definition, has made explicit
policy choices.
17
influenced or might reasonably be thought to have influenced the
imposition of the particular sentence. For reasons that we think
are apparent, we direct that resentencing be before a different
judge.
The defendant's conviction is affirmed, his sentence is
vacated, and the cause is remanded for resentencing, with
instructions.
18