United States v. Sharpton

United States Court of Appeals
For the First Circuit

No. 01-1780

UNITED STATES OF AMERICA,

Appellee,

v.

ALFRED SHARPTON,

Defendant, Appellant.

No. 01-1781

UNITED STATES OF AMERICA,

Appellee,

v.

ADOLFO CARRIÓN,

Defendant, Appellant.

No. 01-1782

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO RAMÍREZ,

Defendant, Appellant.
No. 01-1783

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ RIVERA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Selya, Boudin, and Lynch,
Circuit Judges.

Flora Edwards, Max D. Stern, and Charles J. Ogletree,
Jr., with whom Stern, Shapiro, Weissberg & Garin was on brief, for
appellants.
Peter Strasser, Special Assistant United States
Attorney, for appellee.

June 14, 2001
 Per Curiam. Alfred Sharpton, Adolfo Carrión, Roberto

Ramírez, and José Rivera appeal their convictions and sentences for

violating 18 U.S.C. § 1382 by trespassing on Camp García Naval

Installation at Vieques, Puerto Rico.1 Sharpton was sentenced to

90 days' imprisonment in light of a prior conviction. The other

defendants were sentenced to 40 days' imprisonment. We previously

expedited consideration of these appeals. We now affirm.

Appellants advance a series of arguments. They argue

that: the evidence was insufficient to sustain their convictions;

their sentences were plainly unreasonable; they were rushed to

trial and the trial court abused its discretion in denying a

continuance; the sentencing proceeding was flawed; they were denied

counsel of their choice; and their retained counsel was

ineffective.

We set the context. An area of Camp García in Vieques is

used for live-fire artillery and bombardment exercises by the U.S.

Navy. This, in turn, has led to protests and political

controversy. Some of the protesters have staged demonstrations

within the perimeters of Camp García without obtaining permission

to enter. These incidents have led to government prosecutions for

1 18 U.S.C. § 1382 provides in relevant part: "Whoever, within
the jurisdiction of the United States, goes upon any military [or]
naval . . . installation, for any purpose prohibited by law or lawful
regulation . . . [s]hall be fined under this title or imprisoned not
more than six months, or both."

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trespassing on a military installation, a Class B misdemeanor

charge carrying a maximum potential sentence of six months'

imprisonment. In the year 2000, approximately 400 protesters were

arrested and prosecuted for such trespasses.

Between April 27 and May 2 of 2001, over 180 arrests were

made, including the arrests on May 1 of the four appellants here;

during this time period, Camp García was totally closed because the

live ordinance impact area was "hot" and demonstrations were going

on at the gate. The district court has attempted to expedite the

handling of these 180-plus cases, trying ten or so defendants a day

in consolidated proceedings. The four defendants in these appeals

were arraigned on May 2, 2001, and tried on May 23, 2001, along

with eight others who had been arrested contemporaneously.

We address the appellants' substantive claims first and

their procedural claims second.

I.

Sufficiency of the Evidence

Appellants argue that there was insufficient evidence that

they had actual notice that they were trespassing on U.S. Navy

property. See United States v. Bonilla, 648 F.2d 1373, 1377-78

(1st Cir. 1981) (holding that, where 18 U.S.C. § 1382 prosecution

proceeds on trespass theory, it must be shown that defendant had

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 notice that entry onto military property was in fact prohibited).2

We have described the standard of review for insufficiency of the

evidence claims as "formidable." United States v. Loder, 23 F.3d

586, 589 (1st Cir. 1994). "[W]e must affirm unless the evidence,

viewed in the light most favorable to the government, could not

have persuaded any trier of fact of the defendant's guilt beyond

a reasonable doubt." United States v. Hernandez, 218 F.3d 58, 64

(1st Cir. 2000) (quoting United States v. Paradis, 802 F.2d 553,

559 (1st Cir. 1986)), cert. denied, ___ U.S. ____, 121 S. Ct. 840

(2001).

The appellants attempt a comparison of their case to

Bonilla. The defendants in Bonilla were arrested after approaching

Camp García by boat, landing on Blue Beach -- a beach on the south

side of the island lacking any fences or signs warning that entry

onto the area was prohibited. 648 F.2d at 1379-80 & n.14. Without

such means of notice, the Bonilla court held, the defendants could

2 The government contends that Bonilla has been abrogated by
regulations at 32 C.F.R. §§ 770.35-.40, which state that the U.S. naval
installations in Puerto Rico are "closed" military bases and that
anyone who enters them without the advance consent of a commanding
officer shall be considered in violation of § 1382. The publication of
these regulations in the Federal Register, the government contends,
provides constructive notice that entrance to Camp García is
restricted. Appellants argue that the regulations cannot permissibly
be construed to eliminate the actual notice requirement articulated in
Bonilla. Because we find that, in any event, there was sufficient
evidence that the appellants had actual notice that they were
trespassing, we need not decide the question.

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 not be presumed to have known that they were trespassing on

military property. Id. at 1383. The appellants here claim on

appeal that they could have entered the base in the same fashion

as the Bonilla defendants; the evidence was insufficient, they say,

to prove that they did not, and so it was insufficient to prove

that they had actual notice they were trespassing.

The comparison is simply not apt. The circumstances

surrounding the appellants' arrests differ dramatically from those

in Bonilla. In this case, one of the government's witnesses at

trial, Officer Guebert, testified that she came upon the appellants

on the north side of the island, standing near the fence running

along the western border of the base.3 The area was about half a

mile from the main gate and miles from the beach. Questioned on

cross-examination whether she asked the appellants if they had a

permit to be there, Guebert responded that it was obvious that they

had none and had entered illicitly: right behind them was the fence

with a large hole cut through it.4 That fact by itself is

3 As to appellants' claim on appeal that they nonetheless
"could have" landed on the south side, as in Bonilla, and walked to the
north side where they were arrested, Officer Guebert specifically
testified that such a scenario was highly unlikely. The appellants
would have had to walk for several miles to the point of arrest and, in
her opinion, surely would have been spotted by guards en route.
4 That fence, an earlier witness had testified, is a steel
fence topped with razor wire and has signs affixed to it stating "No
Trespassing" in English and Spanish. Appellants stress the fact that
the government presented no witness who directly observed the

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 sufficient to enable a rational factfinder to conclude beyond a

reasonable doubt that the appellants knowingly trespassed onto Camp

García.5

Sentences

The appellants next challenge the length of their prison

terms. The sentences imposed were within the statutory limits.

See 18 U.S.C. § 1382. Section 1382 is a Class B misdemeanor

because a violation carries a maximum term of six months'

appellants coming through the hole in the border fence. Obviously, that
fact can be proven through circumstantial evidence. Further, base
records showed that none of the appellants had been given permission to
enter Camp García.
5 This holding finds confirmation in the appellants' own
allocutions at sentencing. Three of the four specifically noted that
they traveled to Vieques fully aware that the protests they planned
were likely to involve illegal conduct carrying the risk of
imprisonment.

Adolfo Carrión stated, "I thought that it was absolutely important
and patriotic . . . to do something that, in fact, we understand was a
violation of a rule. . . . [W]e went into a territory understanding
that we were engaging in an act of civil disobedience. . . . I am not
trying to get around any meting out of justice. I certainly would be
willing to serve whatever sentence you dispense."

Roberto Ramírez stated, "I came to Vieques knowing that there was
a great likelihood that I am committing an act of disobedience, being
an attorney, that I would have, someday, to come before a judge such as
yourself. . . . Your Honor, I am prepared and ready to accept the
responsibility for the acts that I have undertaken."

Alfred Sharpton said he understood that he risked imprisonment and
the possible disruption of his important personal plans: "I risked all
of that because I thought it was important to make a moral stand. . .
. [W]hatever the Court’s decision, I will stand by that decision and
will have to deal with that decision."

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imprisonment. See id. § 3559(a)(7). The sentencing guidelines do

not apply to Class B misdemeanors. See U.S.S.G. § 1B1.9. We

review the appellants' sentences, therefore, only to determine

whether they are "plainly unreasonable." 18 U.S.C. § 3742(e)(4).

That extremely high bar is not met here. The district

court had valid reasons for imposing the sentences it did. On this

point, we take judicial notice of the district court's remarks

during sentencing proceedings in another consolidated Camp García

trespassing case, held the previous day. There, the court

explained that the primary factors motivating its sentencing

decisions in these cases were those listed in 18 U.S.C.

§ 3553(a)(2)(A) and (B) -- namely, the need "to promote respect for

the law" and the need "to afford adequate deterrence to criminal

conduct." The court, referring to sentences given in the year

2000, noted that treating Camp García trespassers with a "slap on

the wrist" had not adequately served these objectives. It can

safely be thought that these same considerations generally guided

the district court's sentencing decisions in the present case.

Indeed, the court imposed the same sentences in both proceedings:

40-day jail terms for first-time offenders and 90-day jail terms

for second-time offenders.

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 We reject the appellants' contention that the district

court's employment of these categories was in and of itself

"plainly unreasonable," reflecting a "one-size-fits-all" approach

to sentencing that ignored material differences between defendants.

The record makes clear that the court drew individual distinctions

among the various defendants. Not only did the court distinguish

between first- and second-time offenders, but the court also took

into account more individualized factors that it considered to be

mitigating; specifically, the court gave lighter sentences to those

defendants with serious medical conditions.

Perhaps, as the appellants contend, the district court

could have drawn more subtle distinctions among the defendants and

adjusted the precise length of their individual sentences

accordingly. But there is nothing "plainly unreasonable" about the

district court's choice to limit its drawing of distinctions at the

point that it did -- especially given that there was nothing in the

record to distinguish the offense conduct of the individual

defendants; all appeared to have trespassed in the same fashion in

the same incident.6

6 Thus, the appellants' objection to a categorical policy of
imposing the same sentence on peaceful and seriously disruptive
trespassers alike is academic. Here, the court did not vary the
defendants' sentences according to differences in their offense conduct
simply because there do not appear to have been any such differences.
The court in no way implied that it was adopting a policy that would
ignore such differences in cases where they actually existed.

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 In short, these matters firmly rest within the broad

discretion of the district court. We find nothing "plainly

unreasonable" in the manner in which the court exercised that

discretion. The appellants' sentences stand.

Relatedly, appellants speculate that the district court might have
sentenced them as it did because it believed that they were the
particular defendants who cut through the fence. There is not one iota
of record support for this contention; to the contrary, the contention
is belied by the uniformity of the sentences imposed as between the
appellants and the other defendants.

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 II.

Denial of Continuance

Appellants argue that they lacked sufficient time to

prepare for trial and that the district court abused its discretion

in denying their motion for a continuance.

The record shows that the court issued a notice on May 10,

2001, alerting the parties to the trial date, May 23, 2001.

Counsel did not move for a continuance until the commencement of

trial. In denying a continuance, the trial court referenced the

fact that the May 10 notice of the trial date provided adequate

time for preparation and on that basis ordered the trial to

proceed.

That decision withstands scrutiny. The trial transcript

reveals that Jorge Manuel Carmona Rodriguez was appellants’ counsel

of record from the date of arraignment. In requesting a

continuance at trial, Carmona's only stated reason for not being

prepared was that his clients had just arrived that morning. Once

counsel had notice of the trial date, it was his obligation to

prepare his clients for trial. That he did not do so until the

morning of the proceeding (assuming the allegation is true) does

not oblige the district court to grant a motion for a continuance.7

7 It is also noteworthy that none of the other defendants tried
along with the appellants moved for a continuance on the ground that
their counsel had not had adequate time to meet with them in

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 Counsel did not argue to the trial court that the notice of the

trial date was deficient in any way; nor did he provide any other

reason for a continuance.

To be sure, exactly when counsel received the notice of

the trial date is unclear from the record. The docket indicates

that the order setting the trial date was signed on May 10. It is

possible that it was mailed later, and the defendants now assert

that their counsel did not receive it until May 18. Even assuming,

however, that counsel was not notified of the trial date until May

18 and did not receive discovery until May 22, the appellants must

still show they were prejudiced by a May 18 notice. See United

States v. Brand, 80 F.3d 560, 564 (1st Cir. 1996).

From this record, the appellants have shown no cognizable

prejudice. Appellants were arrested on May 1 and arraigned on May

2. They had three weeks to prepare for trial. The case was simple

and straightforward; the evidence and witnesses were readily

available to appellants' counsel. Appellants fail to explain

specifically how, under these circumstances, counsel was

preparation for trial.
Further, under the Speedy Trial Act, a defendant charged with
a Class B misdemeanor may be brought to trial in less than 30 days from
arrest. See 18 U.S.C. § 3161(c)(2) (requiring minimum 30-day waiting
period before trial); id. § 3172(2) (exempting Class B misdemeanors
from scope of Act). These defendants were represented by counsel from
May 2 on and, under the law, the setting of a prompt trial should not
have come as a surprise.

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nonetheless prevented from developing their case. They merely

offer generalities -- a need to assess the discovery, marshal

witnesses, develop a theory of the case, and so on.

At most, appellants suggest that, had they had enough

time, they would have been able to review and put into evidence a

videotape of their arrests taken by a videographer hired to

accompany them on the protest. Appellants argue that the tape was

probative both as to guilt on the issue of notice and as to

sentencing. Again, though, appellants offer no specific

description of the tape's contents that might illustrate how it

would have been exculpatory or mitigating. Moreover, the tape was

made on the day of the arrests -- May 1 -- roughly three weeks

before trial. It is thus not apparent why Carmona could not have

reviewed the tape ahead of time or why he was unable to proffer it

at trial.

Sentencing Proceedings

The appellants also complain that the court sentenced them

without a presentence report (PSR) and without giving them any

meaningful opportunity to present mitigating evidence. They

contend that the court denied what they characterize as trial

counsel's motion to join previous defense motions -- made in a

separate case the preceding day -- for presentence reports and for

additional time to prepare for sentencing.

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 However, the record reveals that counsel never made such

a motion. At the conclusion of the presentation of evidence,

counsel said simply that he wished to "join the defense’s motions

that have been filed." Context makes it perfectly clear that the

motions referred to were not sentencing motions made in a separate

case the preceding day. They were Rule 29 motions for a judgment

of acquittal, which other defense counsel had just made. Hence,

because the appellants failed to make a timely objection to the

sentencing proceedings, we review those proceedings for plain

error, and find none.

As to whether the court permissibly proceeded to

sentencing without the preparation of a PSR, Rule 32(b)(1) states

that a PSR must be prepared unless "(A) the court finds that the

information in the record enables it to exercise its sentencing

authority meaningfully under 18 U.S.C. § 3553; and (B) the court

explains this finding on the record." Fed. R. Crim. P. 32(b)(1).

Although the district court did not explicitly make such a finding

in this case (understandably, given that appellants never made a

motion under Rule 32(b)(1)), the court did explain in proceedings

the previous day why it believed that PSRs were generally not

needed in Camp García trespassing cases such as this one. The

court explained that the primary factors motivating its sentencing

decisions in these cases were those listed in 18 U.S.C. §

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3553(a)(2)(A) and (B) -- the need to promote respect for the law

and to adequately deter criminal conduct. Moreover, the court

stressed that the crimes at issue were misdemeanors carrying a

maximum sentence of six months -- so that room for sentencing

adjustments was sharply constricted in comparison with felony

cases. Thus, the court concluded that allocution by the defendants

and representations by counsel would be sufficient in these

trespassing cases and that requiring the preparation of PSRs would

impose an unnecessary burden on the probation department.

The court's decision was not plainly erroneous. Moreover,

even were we to assume arguendo that the district court failed to

comply with Rule 32(b)(1), the appellants have not shown how they

have been harmed by the lack of a PSR. See United States v. Lowe,

654 F.2d 562, 566 (9th Cir. 1981) (concluding that sentencing

properly proceeded in the absence of a PSR, given that there was

no evidence that the court relied on erroneous information and

defendant did not credibly suggest how a PSR would have changed the

sentence imposed). Each appellant was given and took the

opportunity for allocution at sentencing, in which they brought

various potentially mitigating facts to the court's attention.

Counsel likewise made such representations to the court.

Appellants have not shown how the preparation of PSRs would have

allowed them to put forward any mitigating facts that were not

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 raised, or could not reasonably have been raised, during the

sentencing proceeding.

Appellants similarly reiterate their claim that they

lacked adequate time to prepare for the case, and so lacked

adequate time to prepare for their allocutions. They claim to have

been taken completely by surprise by the court's sentencing

decision. This claim is unpersuasive.

First, at their May 2 arraignment, appellants were

forewarned that the offense with which they were being charged

carried with it the prospect of a prison term. Appellants thus

cannot claim surprise that terms of imprisonment were imposed in

their cases.8

8 For this reason, this case is a long step removed from Burns
v. United States, 501 U.S. 129 (1991), on which appellants rely in
arguing that the district court was obliged to notify them of its
intention to sentence first-time offenders to 40 days and second-time
offenders to 90 days. In Burns, the Supreme Court held that a district
court must notify a defendant in advance if the court is contemplating
a sua sponte upward departure from the applicable guidelines range.
501 U.S. at 138-39. Here, of course, the district court did not depart
upward from the relevant sentencing range (which, in this case, was the
statutory range, since the appellants' offense was a Class B
misdemeanor to which the sentencing guidelines do not apply). The
district court imposed sentences well within this range; appellants
merely allege that the sentences were at odds with the court's past
practice from the previous year. Burns does not extend to such a
situation. Cf. United States v. Adipietro, 983 F.2d 1468, 1473-74 (8th
Cir. 1993) (holding that, because "[d]epartures are sharply
circumscribed under the sentencing guidelines and represent a more
drastic change in a defendant's sentence than merely adjusting a
sentence without going outside the presumptive sentencing range," Burns
applies only to departures from, and not to adjustments within,
guidelines range); accord United States v. Canada, 960 F.2d 263, 267

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 Second, as to whether the appellants had a sufficient

opportunity for allocution, we again find no error, plain or

otherwise, in the proceedings conducted by the district court.

Appellants each gave lengthy allocutions in which they described

various facts that they thought should mitigate their sentences --

e.g., that their offenses were motivated by reasons of conscience,

that they held positions of political responsibility and were

participating in pending election campaigns, and that they had

important personal plans for the near future. They made no request

to provide further information before the court passed sentence.

On appeal, appellants articulate no other potentially

mitigating facts that they would have included in their allocutions

had they had more time to prepare. The only significant suggestion

made is that one of the appellants, Rivera, did not have the fair

opportunity to inform the court that he suffered from a medical

condition, specifically, hypertension. But that suggestion is

untenable. Much of the sentencing proceedings focused on the issue

of medical conditions. The court had, before hearing from the

appellants, heard extensively from other defendants as to their

medical conditions; and before passing sentence on any of the

defendants, the court made clear that those defendants with medical

conditions would receive lighter sentences. Appellant Rivera heard

(1st Cir. 1992) (Burns does not apply to mere upward adjustments).

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and observed these aspects of the proceedings, yet chose to remain

silent as to his own medical condition. He was not denied the fair

opportunity to raise the issue.

Assistance of Counsel

The appellants argue that they were denied the right to

retain counsel of their own choosing. But attorney Carmona, in

fact, was retained counsel and had appeared for the appellants at

their May 2 arraignment. No motion by Carmona to withdraw as

counsel was made at any time from May 2 until after the

commencement of the trial. It was only after appellants' motion

for a continuance was denied that they asked Carmona to move to

withdraw. Carmona did so, and the motion was denied. The trial

court reasonably could have thought that the stated desire to

obtain substitute counsel -- notably, first raised in the immediate

aftermath of the denial of a continuance and not until after trial

had commenced -- was merely another attempt to obtain a delay of

the trial, a request already denied.

More importantly, defendants were not denied their choice

of counsel. Carmona informed the court that appellant Sharpton

wanted another attorney. None of the other three defendants made

such a request. The court responded that it would allow Sharpton

to have additional representation, but the case was going forward

in any event. Attorney Sanford Rubenstein was present in the

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 courtroom, accompanying Sharpton. It is unclear from the record

whether Rubenstein, who says he is a civil lawyer, was the lawyer

Sharpton wanted. If Rubenstein were wanted, Sharpton could easily

have had Rubenstein join in his defense. Sharpton's discourse at

sentencing suggests that he did want representation by Rubenstein,

in order to put into evidence his own videotape of the appellants'

arrests. Again, there is no explanation by Sharpton as to why

Carmona could not have sought the admission of the videotape.

Finally, the appellants contend that they suffered from

ineffective assistance of counsel, in that their trial counsel

chose not to put on a defense or cross-examine government

witnesses. They request a new trial. The rule is firm, however,

that an ineffective assistance claim will not be entertained on

direct appeal "absent a sufficiently developed evidentiary record."

United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.), cert. denied,

528 U.S. 887 (1999). Appellants insist that the relevant facts

are established and the matter should be resolved now. But, as

evidenced from the discussion above, a number of relevant facts are

far from established. For example, it is unclear when appellants'

counsel received notice of trial, or what preparations counsel took

in anticipation of trial.9 Thus, if an ineffective assistance

9 On the facts as they stand, it is quite plausible that
appellants' trial counsel's failure to put on a defense or cross-
examine government witnesses stemmed not from ineffectiveness, but from

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 claim is to be brought at all in this case, it must be brought

under 28 U.S.C. § 2255.

III.

The judgment of the district court is affirmed.

a strategic choice by the appellants to take "the high road," as Rivera
called it during his allocution, and accept whatever came of their acts
of conscience. Certainly, some of appellants' own remarks during
sentencing suggest such a strategy. See supra note 5.

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