United States Court of Appeals
For the First Circuit
No. 99-1053
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL ORTIZ-SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Lipez, Circuit Judges,
Carlos Rodriguez Garcia for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, were on brief, for
appellee.
May 2, 2000
SELYA, Circuit Judge. Much to his later chagrin,
defendant-appellant Angel Ortiz-Santiago (Ortiz) joined a
massive conspiracy that imported drugs into Puerto Rico and then
distributed them. Ortiz participated in a successful November
1996 smuggle and an unsuccessful December 1996 smuggle that came
to naught when federal authorities seized the drugs. On the
first occasion he helped to off-load the contraband and on the
second he served as a lookout.
In due course, a federal grand jury returned a twenty-
one count indictment against more than four dozen defendants.
Three counts targeted the appellant: an omnibus count that
charged the master conspiracy and specific transaction counts
corresponding to the two smuggles in which he had participated.
Attorneys for the appellant and the government proceeded to
negotiate a non-binding plea agreement (the Agreement) under the
aegis of Fed. R. Crim. P. 11(e)(1)(B). The Agreement provided
in substance that the appellant would plead guilty to the
conspiracy count, and that the government would dismiss the
other charges against him. The Agreement further contemplated
that the government would (a) seek to hold the appellant
responsible for only 50-150 kilograms of cocaine, (b) recommend
an optimum three-level credit for acceptance of responsibility,
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see USSG §3E1.1, and (c) recommend a sentence at the nadir of
the applicable guideline sentencing range.
At the disposition hearing, the appellant requested
three other dispensations: a downward departure, a role-in-the-
offense adjustment, and recourse to the so-called "safety valve"
provision. The court rebuffed all three requests. It then
premised the appellant's base offense level on the parties' drug
quantity stipulation, reduced the offense level by applying the
three-level adjustment for acceptance of responsibility,
dismissed the "specific transaction" counts, computed the
guideline sentencing range at 135-168 months, and imposed a 135-
month incarcerative sentence. The sentence exceeded the ten-
year mandatory minimum sentence applicable to the offense of
conviction. See 21 U.S.C. § 841(b). This appeal ensued.
The appellant launches a multi-pronged attack on his
conviction and sentence. We arrange his contentions in groups
and discuss them sequentially.
I
The appellant asseverates that the district court erred
in failing to grant his request for a downward departure. He
sought that largesse under the Sentencing Guidelines' general
departure provision, which permits a court to sentence outside
the applicable guideline range if it discerns significant
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atypicality due to an aggravating or mitigating circumstance not
adequately taken into account by the Sentencing Commission. See
USSG §5K2.0; see also 18 U.S.C. § 3553(b). The operation of
this provision depends, to a large extent, on the informed
discretion of the sentencing judge. See Koon v. United States,
518 U.S. 81, 98 (1996); United States v. Snyder, 136 F.3d 65, 68
(1st Cir. 1998).
Here, the appellant predicated his departure request
on his responsibility to care for his ailing father. The record
makes manifest that the trial court knew that it could have
departed had it found that the appellant's family situation
warranted such a benefice. The court, however, considered and
rejected the claimed mitigation.
We cannot second-guess this implicit conclusion that
the appellant's familial responsibilities did not sufficiently
distinguish his case from the mine-run. The court of appeals
has no authority to review a district court's discretionary
decision not to depart, whether upward or downward, unless the
putative appellant can show that the district court acted in the
mistaken belief that it lacked the ability to depart. See
United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994);
United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991). The
appellant has made no such showing. His case thus fits snugly
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within the general rule, not within the long-odds exception to
it. Consequently, we lack jurisdiction to entertain his plaint.
See United States v. Rivera-Maldonado, 194 F.3d 224, 236 (1st
Cir. 1999) (refusing to review a district court's denial of a
section 5K2.0 departure request based on family hardship).
II
The appellant next assails the lower court for refusing
to make a downward role-in-the-offense adjustment. In mounting
this attack, he points out that, whereas the drug-smuggling ring
cut quite a wide swath, his participation was limited to
infrequent, relatively low-level tasks. Because he acted once
as a stevedore and once as a lookout, nothing more, he claims an
entitlement to a reduced offense level. See USSG §3B1.2
(describing possible offense-level adjustments for defendants
who occupy "minor" or "minimal" roles).
Role-in-the-offense determinations are notoriously
fact-sensitive, and this case is no exception. The party
seeking the adjustment bears the burden of persuasion. See
United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990).
Moreover, appellate review is deferential: the district court's
resolution of a dispute over a defendant's role is reviewed only
for clear error. See id. at 333. "Thus, absent a mistake of
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law, battles over a defendant's status . . . will almost always
be won or lost in the district court." United States v.
Graciani, 61 F.3d 70, 75 (1st Cir. 1995).
These principles control here. As the phrase implies,
a minimal participant is one who "plays a minimal role in
concerted activity." USSG §3B1.2, comment. (n.1). The district
court found that this description did not fit the appellant. In
view of the appellant's on-the-scene involvement in two large-
scale smuggles, that finding is not open to serious challenge.
See, e.g., United States v. Dimarzo, 80 F.3d 656, 662 (1st Cir.
1996); United States v. Munoz, 36 F.3d 1229, 1238 (1st Cir.
1994); see also United States v. McCarthy, 97 F.3d 1562, 1573
(8th Cir. 1996) (affirming decision not to treat lookout in
large marijuana processing conspiracy as "minimal" participant).
The second wave of the appellant's attack presents a
closer call. Although involved in two smuggles, the appellant
performed only menial tasks and his argument for classification
as a minor participant is not without force. The standard of
review looms large, however, and in the final analysis we uphold
the district court's contrary determination.
A minor participant "means any participant who is less
culpable than most other participants, but whose role could not
be described as minimal." USSG §3B1.2, comment. (n.3). The
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defendant has the burden of proving that he is both less
culpable than most others involved in the offense of conviction
and less culpable than most other miscreants convicted of
comparable crimes. See United States v. Isienyi, ___ F.3d ___,
___ (7th Cir. 2000) [2000 WL 291182, at *2]; Ocasio, 914 F.2d at
333; see also USSG §3B1.2, comment. (n.3 & backg'd.). The
sentencing court supportably found that the appellant had
unloaded a sizable drug shipment and had conducted surveillance
as a member of the conspiracy, and that this participation,
while peripheral in a sense, was enough to warrant categorizing
him as a player rather than as a dabbler.
In the sentencing court's view, this conclusion was
fortified by the fact that the government had not charged the
appellant with anything near the full drug quantity attributable
to the conspiracy.1 A defendant cannot insist on having it both
ways: if he receives a reduced offense level because the
government agrees to understate the quantity of drugs with which
he has been involved, the sentencing court, if it sees fit, may
keep the scales of justice balanced by denying him the added
1
The government had agreed to limit the drug quantity to 50-
150 kilograms of cocaine. To place this into perspective, we
note that the authorities had seized approximately 1,000
kilograms of cocaine at the time of the December 1996 smuggle
alone, not to mention quantities of heroin and marijuana. The
November 1996 affair involved additional (not insubstantial)
amounts of contraband.
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benefit of a mitigating role adjustment. See Isienyi, ___ F.3d
at ___ [2000 WL 291182, at *2]; McCarthy, 97 F.3d at 1574; see
also USSG §3B1.2, comment. (n.4). Given this background, we
cannot say that the district court clearly erred in not finding
that the appellant was entitled to a downward role-in-the-
offense adjustment.2 See Isienyi, ___ F.3d at ___ [2000 WL
291182, at *2]; Rivera-Maldonado, 194 F.3d at 234; Graciani, 61
F.3d at 75; Ocasio, 914 F.2d at 333.
III
The appellant's third argument is a variation on the
foregoing themes. Citing United States v. Goodwin, 457 U.S.
368, 380-81 (1982), and United States v. Marrapese, 826 F.2d
145, 147 (1st Cir. 1987), he theorizes that the prosecutors were
disappointed that he could give them no useful information about
the activities of the ring; that this disappointment led them to
become vindictive; and that this vindictiveness prompted them to
misrepresent key facts and oppose any leniency (such as a
downward departure or role-in-the-offense adjustment).
2Because this claim falters on the facts, we do not need to
consider at any length the possible effect of the Agreement's
"no further adjustments" clause (discussed in section IV,
infra). We note, however, that while the parties' consent to
eschew an adjustment, expressed in a non-binding plea agreement,
does not deprive the sentencing court of power to make the
adjustment, see Fed. R. Crim. P. 11(e)(1)(B), it nonetheless may
be considered by the court for what evidentiary value it may
possess.
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This suppositious chain of inferences need not detain
us. Absent some evidentiary predicate, direct or circumstantial
— and we discern none in the appellant's wholly conclusory
presentation — merely chanting the mantra of prosecutorial
vindictiveness gets a defendant nowhere. See United States v.
Lanoue, 137 F.3d 656, 665 (1st Cir. 1998); United States v.
Stokes, 124 F.3d 39, 46 (1st Cir. 1997); United States v.
Sutherland, 929 F.2d 765, 772 n.2 (1st Cir. 1991).
To be sure, the appellant points to one hard fact: he
notes that certain other coconspirators pled guilty and then
received somewhat shorter sentences than he did. But this
circumstance does not advance his cause. Disparity in
sentencing amongst coconspirators, without more, is not enough
to justify a downward departure. See United States v. Wogan,
938 F.2d 1446, 1448 (1st Cir. 1991). By like token, such
differentials, in and of themselves, are inadequate to raise a
presumption of prosecutorial vindictiveness. See United States
v. Ellis, 975 F.2d 1061, 1066 & n.2 (4th Cir. 1992); cf. United
States v. Rodriguez, 162 F.3d 135, 151-52 (1st Cir. 1998)
(discussing wide variety of factors that might justify disparate
sentences as between coconspirators), cert. denied, 526 U.S.
1152 (1999).
IV
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The most salient issue in this appeal implicates the
district court's conclusion that the appellant did not qualify
for the safety valve. Insofar as such a ruling hinges on
differential factfinding, we review it for clear error. See
United States v. Miranda-Santiago, 96 F.3d 517, 527 (1st Cir.
1996). Here, however, the material facts are not in genuine
dispute and the court's ruling rests on a determination of law.
Hence, our review is plenary. See United States v. White, 119
F.3d 70, 73 n.6 (1st Cir. 1997).
Congress enacted the safety valve provision, 18 U.S.C.
§ 3553(f), in order to mitigate the harsh effect of mandatory
minimum sentences on certain first offenders who played
supporting roles in drug-trafficking schemes. See Miranda-
Santiago, 96 F.3d at 527 & n.22 (citing H.R. Rep. No. 103-460,
2d Sess., at 4 (1994)). The Sentencing Commission then
incorporated the statutory text verbatim into the Sentencing
Guidelines. See USSG §5C1.2. When applicable, these provisions
mandate both reduction of the defendant's offense level and
judicial disregard of statutes imposing mandatory minimum
sentences.3 The safety valve applies if
3
Here, for example, the safety valve, if applicable, would
operate to reduce the appellant's base offense level by two
levels, yielding a guideline sentencing range of 108-135 months.
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(1) the defendant does not have more than 1
criminal history point . . . ;
(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or induce
another participant to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
the offense . . . and was not engaged in a
continuing criminal enterprise . . . ; and
(5) not later than the time of the
sentencing hearing, the defendant has
truthfully provided to the Government all
information and evidence the defendant has
concerning the offense or offenses that were
part of the same course of conduct or of a
common scheme or plan . . . .
18 U.S.C. § 3553(f); USSG §5C1.2.
The record strongly suggests — and at oral argument in
this court the Assistant United States Attorney pretty much
conceded — that the appellant satisfies all these criteria: he
has no prior criminal record; he did not carry a firearm,
threaten violence, engage in activity that was shown to involve
death or serious bodily harm to others, or occupy a leadership
role in the criminal enterprise. Moreover, he seems to have
been forthcoming in his post-arrest discussions with the
authorities. Citing these facts, the appellant's counsel asked
the sentencing court to apply the safety valve. The government
objected, asserting that the request contravened the Agreement.
The court accepted this assertion. We do not.
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The language in the Agreement on which the government
relied declares that, aside from those adjustments that are
expressly delineated in the Agreement, "no further adjustments
to the defendant's total offense level shall be made." We do
not believe the quoted language can support the gloss that the
government places upon it, or that it can be read to bar
judicial recourse to the safety valve. We explain briefly.
In general, courts interpret plea agreements more or
less as contracts. See United States v. Alegria, 192 F.3d 179,
183 (1st Cir. 1999). "That means, of course, that an inquiring
court should construe the written document within its four
corners, 'unfestooned with covenants the parties did not see fit
to mention.'" Id. at 185 (quoting United States v. Anderson,
921 F.2d 335, 338 (1st Cir. 1990)). We have been scrupulous in
holding defendants to the terms of the plea agreements that they
enter knowingly and voluntarily, see, e.g., id.; United States
v. Guzman, 85 F.3d 823, 829 (1st Cir. 1996); Anderson, 921 F.2d
at 337-38; United States v. Hogan, 862 F.2d 386, 388-89 (1st
Cir. 1988), and we must be equally steadfast in dealing with the
government, cf. United States v. Caraballo-Cruz, 52 F.3d 390,
393 (1st Cir. 1995) (explaining that, "in fairness, what is
sauce for the defendant's goose is sauce for the government's
gander").
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The term "adjustments," when used in the federal
sentencing context, simply does not encompass the safety valve
provision. Chapter three of the Guidelines Manual, entitled
"adjustments," describes a variety of potential increases and
decreases that may be made in the course of determining a
defendant's adjusted offense level. That chapter does not
mention the safety valve — a provision that is located in
chapter five, see USSG §5C1.2, along with other provisions that
guide the ultimate sentencing determination. Those provisions
operate dehors the Sentencing Guidelines proper. See United
States v. Joetzki, 952 F.2d 1090, 1097 (9th Cir. 1991). Thus,
the items delineated in chapter five, including the safety
valve, are not "adjustments." In the case of the safety valve,
this distinction is critical: the safety valve is not intended
to affect the calculation of the defendant's offense level per
se, but, rather, to operate as a limitation on the applicability
of mandatory minimum sentences. See United States v. Scharon,
187 F.3d 17, 22 (1st Cir. 1999); H.R. Rep. No. 103-460, supra.
The short of it is that the language in the Agreement to which
the government alludes cannot be stretched to relate to the
safety valve.
If any doubt remains — and we have none — this
conclusion is bolstered by considering the nature of the safety
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valve. Even within chapter five, the safety valve is sui
generis. While it operates somewhat like a downward departure
(i.e., it yields, in the end, a reduced sentence), an important
difference exists. Departures are inherently permissive, see,
e.g., United States v. Dethlefs, 123 F.3d 39, 44-45 (1st Cir.
1997), whereas the safety valve — when it applies — is
mandatory. Congress provided in clear language that, if a
defendant satisfies the statutory criteria (virtually all of
which are objective), the court shall disregard the mandatory
minimum and fashion the sentence accordingly. See 18 U.S.C. §
3553(f); accord USSG §5C1.2; see also Miranda-Santiago, 96 F.3d
at 528 (noting that if "a defendant has met the five
requirements of the [safety valve], the judge is required to set
aside the mandatory minimum").
The obligatory nature of the provision possesses
decretory significance for the purposes of this case. In a non-
binding plea agreement, the government cannot contract around
the safety valve; the most that it can do is attempt to persuade
the sentencing court that the provision does not apply. See Fed
R. Crim. P. 11(e)(1)(B); see also United States v. Bradstreet,
___ F.3d ___, ___ (1st Cir. 2000) [No. 99-1267, slip op. at 10]
("Sentencing, after all, is a matter for the district court and
not for the government."). The court then must pass upon the
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matter, exercising its independent judgment. See United States
v. Thompson, 81 F.3d 877, 880 (9th Cir. 1996). In that
exercise, the court must bear in mind that the safety valve is
a congressional directive. The court cannot reject it on
equitable grounds, but must sift through the statutory criteria
and, if it determines that those criteria have not been met,
must elucidate specific reasons why the provision does not
apply. See Scharon, 187 F.3d at 23 (finding "bare conclusions"
insufficient to disqualify defendant from safety valve);
Miranda-Santiago, 96 F.3d at 529-30 (similar).
In this instance, the court made no such findings. It
simply concluded that the Agreement blocked the application of
the safety valve. In reaching this conclusion, it gave to the
Agreement more force than it deserved and read into it an
understanding that was not conveyed in the text. In these
respects, the court erred as a matter of law. Consequently, the
appellant's sentence must be vacated and the case remanded for
resentencing.
V
We have one more bridge to cross. When the probation
department produced the appellant's presentence investigation
report (PSI Report), difficulties immediately became apparent.
The government had for some unexplained reason created two
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different versions of the facts anent Ortiz's culpability. One
version (which had been used during the change-of-plea colloquy
and in the Agreement) accurately limited his participation to
surveillance and off-loading. The PSI Report, however,
contained a different, more sinister version — one which
included apparently erroneous statements to the effect that the
appellant had distributed cocaine and helped to collect drug-
trafficking proceeds. To make a bad situation worse, the PSI
Report characterized both surveillance and unloading in the
plural, making it appear that the appellant had performed each
task more than once.
The appellant objected to these rather blatant
inaccuracies. The district court indicated its awareness of the
true facts and stated that it would ignore the unfounded
allegations and correct the PSI. The appellant complains that
the district court should have followed through on this pledge.
We agree.
Fed. R. Crim. P. 32(c)(1) provides that the district
court, when faced with a timely challenge, must deal with
factual disputes about material contained in a PSI Report in one
of two ways: either resolving the conflict or deeming the
material irrelevant to the sentencing determination. See United
States v. Van, 87 F.3d 1, 3 (1st Cir. 1996) (explicating
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operation of Rule 32(c)). But the court also must correct the
error or otherwise indicate in writing that the challenged
material is either wrong or irrelevant. See United States v.
Levy, 897 F.2d 596, 599 (1st Cir. 1990). Insistence on this
protocol is not mere pettifoggery: corrections to the PSI
Report are important because the Report will follow the
defendant as he passes through the justice system affecting
classification decisions and a wide variety of other
determinations.
On this occasion, the district court stated that it
would see that the necessary corrections were made, but, for
aught that appears, did not follow through. The court should
have appended an appropriate written statement to the PSI Report
or otherwise ensured that the necessary modifications were made.
On remand, the court should attend to this detail. See id.
VI
We need go no further. For the reasons stated, we
vacate the appellant's sentence and remand for resentencing
consistent with this opinion.
Vacated and remanded.
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