United States v. Cruzado-Laureano

United States Court of Appeals
For the First Circuit

No. 02-2658

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN M. CRUZADO-LAUREANO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Alexander Zeno for appellant.
Thomas Klumper, Assistant U.S. Attorney, with whom H.S.
García, U.S. Attorney, and Nelson Pérez-Sosa, Assistant U.S.
Attorney and Senior Appellate Attorney, were on brief, for
appellee.

April 5, 2005
 LIPEZ, Circuit Judge. On January 8, 2001, Juan Manuel

Cruzado Laureano, sometimes called "Manny" for short, took office

as mayor of Vega Alta, one of Puerto Rico's municipalities. On

January 25, 2002, a federal grand jury returned a superseding

indictment that charged him with a number of crimes tied to abuse

of his public office, including extortion, embezzlement, theft,

money laundering, and witness tampering. After a fourteen-day

trial, Cruzado was convicted of the following charges: one count of

embezzlement from a program receiving federal funds, 18 U.S.C. §

666(a)(1)(A)(i) and (a)(1)(A)(ii); five counts of extortion, id. §

1951(a); five counts of money laundering, id. § 1956(a)(1)(B)(i)

and (a)(1)(B)(ii); and one count of tampering with witnesses, id.

§ 1512(b)(1) and (b)(2). The district court sentenced Cruzado to

63 months' imprisonment on all counts except for the witness

tampering, for which Cruzado received 12 months. The sentences

were to run concurrently with each other. In this appeal, Cruzado

challenges the sufficiency of the evidence supporting his counts of

conviction. He also argues that his sentence was erroneously

calculated. Although we affirm the convictions, we vacate the

sentence and remand for resentencing.

I.

We first provide a brief overview of the case, taking our

information from the record as viewed in the light most favorable

to the jury's verdict. See United States v. Lara, 181 F.3d 183,

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190 (1st Cir. 1999). We reserve a fuller discussion of the facts

for later sections to which they are particularly relevant.

After graduating from the University of Puerto Rico in

1969, Cruzado taught advanced mathematics at a local high school

until 1976. At that point, he moved into the construction

business. In 1992, he went into business with his then-wife, a

pediatric dentist, who opened a medical practice, incorporated as

Oficina Dental Las Colinas, Inc., often referred to by its acronym,

Onaden, Inc. From 1992 to 1995, Cruzado handled routine

administrative tasks for Onaden, including the opening of a bank

account at a local branch of Banco Popular, which would later prove

useful to his criminal endeavors. The account, in the name of

Oficina Dental Las Colinas, Inc., with Cruzado as the only

signatory, was used for such items as lease payments. When Cruzado

became mayor, however, he did not disclose the account’s existence

as required by the Ethics Office for the Commonwealth of Puerto

Rico.

From 1996 to 2000, Cruzado ran a check-cashing business,

El Cajero Expresso. In November 2000, Cruzado was elected mayor of

Vega Alta -- his first try at running for public office -- as a

member of the Popular Democratic Party and was duly sworn into

office on January 8, 2001. Upon his election, Cruzado appears to

have sold the check-cashing business to his oldest son, who took

over day-to-day control. Cruzado, however, retained the last word

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in business affairs and kept control over the business's checking

account.

Within a scant few weeks of becoming mayor, Cruzado began

using his official position to embezzle and extort thousands of

dollars from the municipality and from contractors who were working

for the municipality; he then laundered the money in the Onaden

bank account. We now describe the particulars of his criminal

activity. (See the chart, attached as an appendix, for a summary

of the charges and parties involved.)

A. Cristalería Vega Alta, Inc.

Cristalería Vega Alta is a firm that installs and repairs

glass and aluminum doors. Cristalería's owner, Juan Cuevas

Rodríguez, first got to know Cruzado through Cristalería's glass

work for Cruzado's construction business. Shortly after Cruzado

took office in January 2001, he embarked on an extensive program to

renovate Vega Alta's city hall, which was in poor shape. Cruzado

requested that Cristalería perform some locksmithing and remodeling

work on the building, and he asked Cuevas for a price estimate.

Cuevas quoted a price of $5,814. Cruzado then told Cuevas to add

$2,000 to his quote and give the extra money to him. Fearing that

he might be cut off from future work if he disobeyed, Cuevas

obliged.

Cristalería’s contract provided that the company would be

paid from a trust account of the municipality at Banco Santander,

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whose funds were reserved for making improvements to the city hall.

For some reason, there was a delay in the disbursement of those

funds. Cruzado spoke to Vega Alta’s director of finance, Damien O.

Colón Pabón, telling him that Cristalería was getting impatient

about the delay and asking whether the municipality could expedite

payment. Colón told Cruzado that the municipality’s regular

checking account might be faster, although disbursing funds from

that account would require additional paperwork: price quotes,

invoices, and various other papers. Also, when Banco Santander

eventually made the disbursement from the trust account, that money

would have to be put into the municipality’s checking account.

Cruzado then informed Cuevas that, to be paid, he would

need to procure some other, competing bids that were higher than

Cristalería's. Cuevas complied: he approached two competing glass

shops and told them to prepare fake bids that were higher than

Cristalería's quote. They agreed to do so, even though they had no

intention of submitting a formal bid for the work.

On April 4, 2001, the check from the trust account to pay

Cristalería for its work was delivered to Cruzado’s office. Colón

requested that the mayor deposit the check into the municipality’s

checking account. The mayor responded that Cristalería would be

working for the municipality in the future, and that the check

would be used to pay for that work. Colón criticized that plan,

reaffirming that the check should go into Vega Alta’s checking

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account and that, if Cristalería needed to be paid for new work,

then a new contract should be drawn up and the disbursements could

be made on that basis. Cruzado assured Colón that those

formalities were not necessary; he would be responsible for

retaining the check and making payments to Cristalería.

Cristalería was then paid twice for its work, receiving

checks from both of Vega Alta's bank accounts. Specifically, on

March 23, 2001, Cuevas picked up a check from city hall, drawn on

the municipality's regular checking account, for the inflated price

of $8,549 (minus a certain sum that Cuevas owed the municipality in

licensing fees). Cuevas deposited that check in Cristalería’s bank

account. Then, on April 4, 2001, Cuevas received a visit in his

office from Cruzado, who came bearing another check, this one also

for $8,549 (again, minus certain immaterial deductions) drawn from

the trust account. Cruzado told Cuevas to take the check,

explaining that Cristalería would earn the double payment by doing

more jobs for Vega Alta in the future. The next day, April 5,

2001, Cuevas issued two checks drawn on Cristalería’s account, each

for $2,000: one made out to "cash," and one made out to "Onaden,

Inc.," according to Cruzado's instructions. Cruzado's chauffeur

cashed the first check at the check-cashing business of Cruzado’s

son and gave Cruzado the money, while Cruzado deposited the second

check into the Onaden account at Banco Popular.

In early October 2001, Cruzado asked to meet with Cuevas,

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telling him he had something important to discuss. He claimed that

he was being audited, and that he was nervous about the $2,000

check that Cuevas had issued to Onaden, Inc. Cruzado told Cuevas

that, if asked about the check, he should say that it was a

repayment of a loan extended to him by Cruzado before becoming

mayor.

B. Sidney Travel and Tours, Inc.

In 2001, Vega Alta was celebrating its 225th anniversary

and, at Cruzado’s request, the organizers of the annual Puerto Rico

Day Parade in New York were going to dedicate that year’s parade to

the town. As mayor, Cruzado formed a committee, called the Puerto

Rico Day Parade Committee, to raise money and arrange for Vega

Alta’s delegation to travel to New York for the June parade. The

committee, which was composed of governmental employees and

representatives from local cultural groups, opened a checking

account under the name “Centro Cultural de Vega Alta,” which had

two signatories, neither of whom was Cruzado. The Committee chose

a local travel agency, Sidney Travel and Tours, to arrange for

airplane tickets, ground transportation, and hotels. Cruzado was

the only member of the committee who was handling lodging and hotel

accommodations. Sidney Travel’s owner, Lilia Alonso Alvarez, had

numerous contacts over the next few months with the committee while

planning the trip to New York. Between April and June 2001, the

committee raised about $160,000: $40,000 given by the

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municipality’s assembly, the rest through private donations. Any

money not needed for the trip was to be refunded to the

municipality.

The committee put down an initial deposit with Sidney

Travel to secure plane and hotel reservations. As the date of the

parade neared and the travel arrangements assumed their final form,

Alonso calculated that (1) the committee owed Sidney Travel

$67,240.90; and (2) Sidney Travel owed the committee a refund of

$14,816.74, which could be offset against the larger amount.

Alonso informed the committee of her tally. On May 25, 2001,

Cruzado arrived at Sidney Travel for a financial reckoning, bearing

a blank check from Centro Cultural's account. He was alone.

Instead of allowing Alonso to credit the entire $14,816.74 to the

committee's account, Cruzado told her that he wanted part of the

credit as a separate payment, which would be useful to him as food

money for children who would be attending the parade. So

instructed, Alonso made out a check for $5,816.74 to Onaden, Inc.,

and credited the remaining $9,000 to the committee's balance. The

mayor then paid off the balance with a Centro Cultural check for

$58,240.90. He later deposited the Onaden check into his private

account.

In New York, Cruzado stayed at the Grand Hyatt Hotel,

while most of Vega Alta’s other parade attendees stayed at the

Marriot Marquis. On June 11, 2001, the day after the parade,

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Cruzado sent a messenger to speak to Marilyn García, who served as

one of the two signatories on Centro Cultural checks. Cruzado’s

message: he wanted three signed, blank checks drawn on the Centro

Cultural account. García handed over the checks. Cruzado made out

the first two checks to the Grand Hyatt; the third, he made out to

Onaden, Inc., in the amount of $4,164. On July 3, 2001, that check

was deposited in the Onaden account.

On July 6, 2001, after the trip was over, Sidney Travel

made a final accounting. Again, a refund was due to the committee.

Cruzado went to Sidney Travel himself and instructed Alonso to

issue a check in the name of Onaden, Inc., for $8,174.80. Later,

that check was deposited into Onaden’s account.

On August 3, 2001, the Federal Bureau of Investigation

spoke to Alonso about Cruzado’s role in the committee’s travel

preparations. The next day, she informed Cruzado of the FBI’s

interest in his dealings. Cruzado then made out an Onaden check

for $13,991.54 (the total of Sidney Travel's May 25 and July 6

checks to Onaden), dated it July 7, 2001, and deposited it into the

Centro Cultural account on August 13, 2001.

C. Vega Alta Medical Hospital, Inc.

Like city hall, Vega Alta’s local health clinic, the

Centro de Diagnóstico y Tratamiento (CDT), needed renovations.

Located throughout Puerto Rico, CDTs provide basic health care to

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local populations.1 Shortly before the events of this case, Puerto

Rico had privatized many CDTs. Vega Alta’s CDT had been purchased

by a partnership formed by two doctors: Luis González Bermúdez and

Emilio Rivera Costas. The partnership was named Vega Alta Medical

Hospital, Inc. The partners divided their responsibilities: Dr.

González was the medical director, while Dr. Rivera was the

administrator, handling tasks relating to maintenance, repair, and

management. The partners had agreed with the municipality

(although not in a written contract) that Vega Alta would provide

two services -- ambulance service, crucial to the CDT’s

functioning, as well as groundskeeping. Vega Alta had also agreed

to donate an old, unused mobile health vehicle, which the CDT could

repair and then use to provide health care to rural and outlying

areas. Dr. González testified that the municipality was in charge

of maintaining and fixing the CDT's physical facilities, as

directed by Dr. Rivera.

Vega Alta’s CDT also lacked air conditioning in the

emergency room and administrative offices, a violation of Puerto

Rico’s health code. The doctors had been soliciting quotes from

several air-conditioning businesses to remedy the problem. In

1
Puerto Rican law defines a CDT as "an independent facility
or one operated in conjunction with a hospital which provides
community services for the diagnosis and treatment of ambulatory
patients under the professional supervision of persons licensed to
practice medicine, surgery or dentistry in Puerto Rico." 24 P.R.
Laws Ann. § 331a(A)(4).

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January 2001, Cruzado visited the CDT for the first time, where he

met with Dr. Rivera, who explained to him some of their problems.

Cruzado said that he would send over a company, Martínez Air

Conditioning, who had done some work for the municipality in the

past, and that Dr. Rivera need not continue seeking bids. Cruzado

also informed Dr. Rivera that Martínez Air Conditioning would

install an air-conditioning unit in the CDT’s dentistry office,

located in a dilapidated and partially abandoned annex to the main

building. Dr. Rivera protested that his priority was to get air

conditioning for the emergency room, but Cruzado persisted.

Cruzado subsequently paid the CDT another visit to speak

to Dr. González, Dr. Rivera’s partner. The two men were alone.

Cruzado explained that his political party was trying to raise

money through donations. Feeling pressured by the mayor’s

authority and aware of the CDT’s critical need for ambulance

service from the municipality, Dr. González told him that he would

contribute, even though Dr. González did not belong to the mayor’s

political party. At the time, however, Dr. González did not give

the mayor any money.

Martínez Air Conditioning then arrived on the premises,

installed the air conditioner in the dentistry office, and invoiced

the CDT for $2,895, which the CDT did not immediately pay.

Meanwhile, Martínez sent an invoice to the municipality for the

same amount, from which he received a check on May 4, 2001.

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Shortly thereafter, the mayor asked Martínez to remove the air

conditioner from the CDT, for reasons known only to himself, and to

take it to a nearby police station. Martínez did so, and was paid

for his trouble with an $850 check from the municipality dated June

14, 2001.2

On July 10, 2001, Cruzado arrived at the CDT and asked

for money from Dr. Rivera, who understood the payment to be related

to the air conditioner (which, by then, had already been both

installed and removed). Dr. Rivera testified that he knew nothing

about the political contribution that Cruzado and Dr. González had

discussed. Dr. Rivera asked for an invoice; Cruzado left for five

or ten minutes and returned with an invoice for $5,000 on

letterhead reading “Onaden, Inc.” The invoice referred, however,

to work performed by Martínez Air Conditioning.3

Dr. Rivera had a blank payroll check available that had

already been signed by Dr. González. When Dr. Rivera called Dr.

González to inform him of the impending payment, the two partners

did not discuss the purpose of the payment. Dr. Rivera merely

2
The record does not disclose if the emergency room
eventually got an air conditioner.
3
We note that the CDT had already received one invoice from
Martínez Air Conditioning. Apparently, the CDT had also received
an invoice from the municipality for the same air conditioner.
According to Dr. González, however, the municipality bore the
ultimate responsibility for maintaining the CDT’s physical
facilities. Given the various invoices flying back and forth, the
precise division of financial obligations between the CDT and the
municipality for the cost of the air conditioner is unclear.

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informed Dr. González that the mayor was there looking for money,

and Dr. González said that paying him was fine. According to their

testimony, Dr. Rivera understood the payment to be for the air

conditioner, and Dr. González understood the payment to be the

political contribution that he had discussed with the mayor

earlier. Dr. Rivera then handed Cruzado a $5,000 check made out to

Onaden.

Later in October, while being investigated by the FBI,

Cruzado spoke to Dr. Rivera. Cruzado told Dr. Rivera to “tell the

truth,” which, according to Cruzado, was that the payment was a

political donation. Dr. Rivera refused, saying that he would

maintain that the payment was for the air conditioner, as evidenced

by the invoice.

D. Ebanistería Familia

Ebanistería Familia is a woodworking shop in Vega Alta

owned by Pedro A. Colón Muñoz, who knew Cruzado from patronizing

his check-cashing business. During his mayoral campaign, Cruzado

asked Colón for wooden poles to support advertising banners, which

Colón provided free of charge. Soon after his election, Cruzado

called Colón to city hall, where he explained that he wanted some

glasswork and woodwork done in the lobby of the building, including

seven wooden doors and some mahogany cabinets. Colón took some

measurements and quoted a price of $7,500. Cruzado then requested

some additional work. On February 12, 2001, Colón gave Cruzado a

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written price quote for $9,200, which included the requested extra

work. Colón testified that, typically, he requested a 50 percent

deposit from customers before beginning work, which he uses to buy

materials. He was told by Cruzado, however, that the municipality

did not pay such deposits. Cruzado then offered to lend Colón the

money from his son's check-cashing business. Colón went to El

Cajero Expresso and received $5,200.

After Colón had begun the work, Cruzado told him to

reduce the scope of the project, eliminating much of the extra work

which would have raised the project cost to $9,200. Colón complied

and eventually installed the woodwork at city hall. On April 4,

2001, Cruzado arrived at Colón’s place of business bearing a $8,556

check ($9,200 minus 7 percent taxes), drawn on the municipality’s

trust fund at Banco Santander. Evidently, the municipality's

payment had not been adjusted downward to account for the reduced

work. Cruzado asked Colón to take the check and give the excess

funds back in the form of a check payable to cash. Colón’s wife,

a certified public accountant who helped with the family business,

later prepared a check payable to herself for $6,956 (the $5,200

loan plus the municipality’s $1,756 overpayment), endorsed it, and

gave the check to Colón. Colón dropped off the check, which was

now as good as cash, at the check-cashing business of Cruzado's

son. The check was later cashed.

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 E. Premier Electrical and General Contractors, Inc.

Premier Electrical and General Contractors, Inc. (Premier

Electrical), was owned by Juan Marrero Visalden, an electrician.

On June 19, 2001, Marrero contracted with Vega Alta (Cruzado signed

the contract) to build a local indoor basketball court, which would

include cement foundations, bathrooms, a cafeteria, sidewalks,

wiring work, and drainage. The base price for the project was

$293,000; with some additional items, the total price was $342,000.

After signing the contract, Premier Electrical began work in June

or July.

Cruzado paid occasional visits to the site, observing the

work and making casual conversation with Marrero. On one visit in

September, Cruzado asked Marrero for a $10,000 payment for the

Centro Cultural de Vega Alta. Marrero, who testified that he felt

“rather stunned” by the request, agreed to pay. When Marrero asked

how he could contact Cruzado, the mayor gave Marrero his business

card, on which he had written his cell phone number.

On September 28, 2001, Marrero issued a $10,000 check

payable to “Centro Cultural de Vega Alta,” drawn on Premier

Electrical’s account. By coincidence, that same day Cruzado showed

up at the project site. When Marrero told him that the check was

ready, however, the mayor told him to prepare a different check

payable to “cash.” The mayor said that he needed the money to take

care of some “problems” at the Centro Cultural. On October 15,

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2001, Marrero followed those instructions, issued the new check,

and gave it to the mayor at his office in city hall.

After Cruzado was arrested on October 24, Marrero

discovered that the check had not been cashed yet. The next day,

he ordered his bank to stop payment on it. Later, when Cruzado had

posted bond, he paid another visit to the project site. Cruzado

asked what Marrero had done with the check. When Marrero told him

that he had stopped payment on it, Cruzado told him he had done, in

Marrero’s words, “a good job.”

Later, when Cruzado was no longer mayor, he kept calling

Marrero. For example, he informed Marrero that his company had won

a bid that it had submitted to Vega Alta for improvements to a

local baseball field. Marrero knew that he had won the bid but had

yet to receive any official papers confirming that fact. In that

conversation, Cruzado also asked him whether he had met with the

FBI. When Marrero admitted that he had, Cruzado told him that he

would have to call him back. Eventually, Marrero felt compelled to

retain an attorney, who sent a letter to Cruzado asking that he

stop calling and checking into Marrero’s business affairs.

F. Mundo Construction, Inc.

Mundo Construction, Inc., owned by Luis A. Vargas López,

did business under the name Ferretería Mundo as a construction

company and hardware store. Like Colón, the owner of Ebanistería

Familia, Vargas knew Cruzado from using his check-cashing business.

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Vargas, too, helped with Cruzado’s mayoral campaign, setting up

platforms for political rallies without charge. In September 2001,

Cruzado took Vargas to a neighborhood in Vega Alta, where they

discussed a possible construction project involving sidewalks,

curbs, and drainage. Cruzado asked for a price quote from Vargas.

A few days later, after taking some measurements, Vargas delivered

a written estimate of $39,500 to the clerk’s office at city hall.

Vargas then received a telephone call from the mayor, who asked him

to add $2,000 to his quote. Vargas refused, explaining that he was

reluctant to pass the $40,000 mark in his bid.4 Moreover, Vargas

believed that Cruzado wanted the extra money for his private

benefit. Consequently, Vargas refused to add $2,000 to his bid,

and Cruzado then told him that the project would not be built

because of a lack of funds. Cruzado was arrested shortly

thereafter, and another contractor later completed most of the work

that Cruzado and Vargas had discussed.

II.

Some time in 2001, the federal government began

investigating Cruzado's conduct. During that investigation,

Cruzado added to his troubles when he attempted to tamper with

4
For contracts worth more than $40,000, prospective
contractors had to satisfy more formal bidding requirements imposed
by Vega Alta. It appears that the price for the total project was
already over $40,000, having been divided, somewhat artificially,
into one bid for the sidewalks and curbs – $39,500 – and another
bid for the drainage.

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potential witnesses, the owners of Cristalería and Vega Alta

Medical Hospital. The mayor was eventually indicted and arrested

on October 24, 2001. Cruzado posted bond on November 2, 2001, and

was released, whereupon he tampered with another potential witness,

the owner of Premier Electrical.

On January 25, 2002, the grand jury returned a 14-count

superseding indictment, charging Cruzado with the following

offenses:

• Count 1: embezzlement, 18 U.S.C. § 666(a)(1)(A)(i)
and (a)(1)(A)(ii);
• Counts 2, 4, 6, 12, 13, & 14: extortion, id. §
1951(a);
• Counts 3, 5, 7, 8, 9 & 10: money laundering, id. §
1956(a)(1)(B)(i) and 1956(a)(1)(B)(ii);
• Count 11: tampering with witnesses, id. §
1512(b)(1) and 1512(b)(2).

These counts are listed on the chart attached as an appendix to

this opinion, which shows how Cruzado's laundering counts all

derive from money that he was charged with embezzling or extorting.

Trial began on May 20, 2002. The government used a

combination of testimony from Cruzado’s victims and acquaintances,

along with documentary evidence of cancelled checks and the like,

to build its case. After the government rested on May 28, Cruzado

filed a motion for judgment of acquittal on counts 1, 4 through 10,

and 11 (thereby declining to challenge counts 2, 3, 12, 13, and

14). That motion was denied.

In his defense, through the cross-examination of

government witnesses and his own testimony, Cruzado tried to

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characterize some payments as political contributions; as for

others, he stressed that they had been innocent mistakes and that

he had eventually returned the money (he had returned some payments

after the government had begun investigating his dealings). He

also used character witnesses.

After Cruzado rested his case on June 5, he renewed his

motion for judgment of acquittal, which the court granted as to

count 10. On June 7, the jury found Cruzado guilty on all

remaining counts except count 12, for which it returned a verdict

of not guilty. On June 14, Cruzado filed a second motion for

judgment of acquittal as to all remaining counts except 2, 3, 13,

and 14, which the court denied on July 31, 2002. On November 8,

2002, Cruzado was sentenced to 63 months in prison for Counts 1

through 9, 13, and 14; and 1 year for Count 11, the terms to run

concurrently. More than a year later, on November 24, 2003, the

district court ordered Cruzado to pay restitution in the amount of

$14,251.82 to Vega Alta.5 This appeal followed.

III.

We review de novo a district court’s denial of a motion

for judgment of acquittal under Fed. R. Crim. P. 29.6 Our task is

5
The government told us at oral argument that the district
court had not made any findings as to loss amounts. It apparently
overlooked the district court’s restitution order.
6
Fed. R. Crim. P. 29(a) provides in part: "After the
government closes its evidence or after the close of all the
evidence, the court on the defendant's motion must enter a judgment

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to decide “whether, after assaying all the evidence in the light

most amiable to the government, and taking all reasonable

inferences in its favor, a rational factfinder could find, beyond

a reasonable doubt, that the prosecution successfully proved the

essential elements of the crime.” United States v. O’Brien, 14

F.3d 703, 706 (1st Cir. 1994); see also United States v. Piper, 298

F.3d 47, 59 (1st Cir. 2002). The government may satisfy its burden

of proof "by either direct or circumstantial evidence, or by any

combination thereof." United States v. Gifford, 17 F.3d 462, 467

(1st Cir. 1994). Moreover, we must "resolve all credibility

disputes in the verdict's favor." United States v. Taylor, 54 F.3d

967, 974 (1st Cir. 1995). Ultimately, the court "need not believe

that no verdict other than a guilty verdict could sensibly be

reached, but must only satisfy itself that the guilty verdict finds

support in a plausible rendition of the record." United States v.

Gomez, 255 F.3d 31, 35 (1st Cir. 2001) (citation and internal

quotation marks omitted).

Those daunting hurdles apply to the counts that Cruzado

contested below with a Rule 29 motion. He faces an even greater

challenge on the counts that he did not so contest: counts 2, 3,

13, and 14. Cruzado's failure to move for judgment of acquittal on

those counts means that he must show “clear and gross injustice” to

of acquittal of any offense for which the evidence is insufficient
to sustain a conviction."

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prevail now.7 United States v. Hadfield, 918 F.2d 987, 996 (1st

Cir. 1990); see also United States v. Lopez, 380 F.3d 538, 547 (1st

Cir. 2004). With those principles in mind, we assess the

sufficiency of the evidence, beginning with Cruzado’s unpreserved

challenges.

A. Cruzado's unpreserved challenges

1. Three counts of extortion (Counts 2, 13, and 14)

To establish a violation of the Hobbs Act, 18 U.S.C. §

1951, the government must prove three elements beyond a reasonable

doubt: (i) that the defendant induced someone to part with

property; (ii) that the defendant knowingly and willfully did so by

extortionate means; and (iii) that the extortionate transaction

affected interstate commerce. Id. § 1951(a).8 “The term

‘extortion’ means the obtaining of property from another, with his

consent, induced by wrongful use of actual or threatened force,

violence, or fear, or under color of official right.” Id. §

1951(b)(2).

Extortion by "fear" can mean fear of economic loss,

including the possibility of lost business opportunities. United

States v. Bucci, 839 F.2d 825, 827-28 (1st Cir. 1988); see also

7
Although Cruzado failed to move the court for judgment of
acquittal on count 12, the jury ultimately acquitted him of that
charge.
8
In 1946, Congress passed the Hobbs Act to amend the 1934
Anti-Racketeering Act. See Act of July 3, 1946, ch. 537, § 1(c),
60 Stat. 420. Rep. Hobbs introduced the bill that became law.

-21-
United States v. Hathaway, 534 F.2d 386, 396 (1st Cir. 1976). The

government must "show that the victim believed that economic loss

would result from his or her failure to comply with the alleged

extortionist's terms, and that the circumstances . . . rendered

that fear reasonable." Bucci, 839 F.2d at 828; see also United

States v. Rivera Rangel, 396 F.3d 476, 483 (1st Cir. 2005).

Alternatively, to prove extortion under color of official right,

"the Government need only show that a public official has obtained

a payment to which he was not entitled, knowing that the payment

was made in return for official acts." Evans v. United States, 504

U.S. 255, 268 (1992).

a. Extortion of Cristalería (Count 2)

Count 2 charged that on April 5, 2001, Cruzado extorted

money from Cuevas, Cristalería’s owner, by asking him to inflate

his price quote by $2,000 for work that he was doing at city hall.

After Cuevas was paid twice for the same work (one payment from the

municipality’s trust account, one from the city’s regular checking

account), Cuevas paid Cruzado $4,000.

Cruzado first stresses that the only evidence as to

Cruzado’s reason for requesting an extra $2,000 was Cuevas’s

testimony, which he assails as “speculative.” Next, he claims that

Cuevas never gave him the money. Finally, Cruzado makes the

curious argument that what really happened was theft, not

extortion, because the money did not truly belong to Cuevas but to

-22-
the municipality: “In order for there to be extortion the money

must have belonged to Mr. Cuevas. However, the money they shared

belonged to the municipality.”

Cruzado’s first two arguments reduce to a simple

credibility dispute: Cuevas’s account supports the conviction,

while Cruzado’s does not. Appellate courts, however, are wisely

reluctant to “second-guess” a jury’s credibility determination.

United States v. Carroll, 105 F.3d 740, 743 (1st Cir. 1997); see

also United States v. Laboy-Delgado, 84 F.3d 22, 27 (1st Cir.

1996). In the context of a sufficiency challenge, moreover, we are

bound to “resolve all credibility disputes in the verdict's favor."

Taylor, 54 F.3d at 974. A reasonable jury could have rejected

Cruzado’s self-serving testimony, finding instead that Cuevas was

telling the truth.

Cruzado’s third argument -- that the money was not

legitimately Cuevas’s to begin with -– also fails. The statute

does not require that a victim of extortion part with his own

property. Indeed, "a defendant's claim of right to the property is

irrelevant. One may be found guilty of extortion even for

obtaining one's own property." United States v. Sturman, 49 F.3d

1275, 1284 (7th Cir. 1995). To be sure, the rightful owner of the

$4,000 was the municipality, not Cuevas; it was paying for work

that it had not received. Still, a reasonable jury could have

found beyond a reasonable doubt that the mayor induced Cuevas to

-23-
part with the money when Cuevas had actual possession over the

property -- actual possession being "the state of immediate,

hands-on physical possession." United States v. Zavala Maldonado,

23 F.3d 4, 6 (1st Cir. 1994). Cuevas had deposited one of Vega

Alta’s checks into his bank account and had cashed the other; it

was solely because of the mayor’s actions that he relinquished

control over that money.

b. Attempted extortion of Premier Electrical (Count 13)

Premier Electrical’s owner, Marrero, had contracted with

the municipality to build an indoor basketball court. Cruzado

asked him for $10,000, supposedly on behalf of the Puerto Rico Day

Parade Committee, which was having unspecified “problems.”

Ultimately, Marrero gave the mayor a check payable to “cash” but

was able to stop payment after Cruzado was arrested.

Cruzado argues that he requested the $10,000 as a

political donation to Centro Cultural, “an entity controlled by his

party.” He thereby tries to use the requirement that a specific

quid pro quo is necessary for conviction under the Hobbs Act when

an official receives a political contribution. See McCormick v.

United States, 500 U.S. 257, 273 (1991) (official is guilty of

extortion "if the payments are made in return for an explicit

promise or undertaking by the official to perform or not to perform

an official act"). Here, Cruzado avers that he promised nothing

specific in return for accepting the “contribution,” and that

-24-
therefore a reasonable jury could not have found him guilty.

This argument leads nowhere. Although Cruzado asserts

that the payment was a political contribution, he does not point to

any evidence showing that Centro Cultural was a political body or

had anything to do with his political campaign. In fact, Centro

Cultural was not under the control of Cruzado’s political party or

of any political party. While the committee had a number of

governmental representatives on it, there was no testimony that

they were members of a particular party. Moreover, the

governmental representatives were outnumbered on the committee by

members of other cultural groups, which belies the idea that the

committee was “controlled” by Cruzado’s party.

Finally, according to the testimony of Premier

Electrical’s owner, Cruzado requested in the end that the check be

made out to “cash,” not “Centro Cultural.” A reasonable jury could

have inferred that Cruzado intended not to use the money for

anything related to the committee’s activities (especially because

the committee was formed specifically for the Puerto Rico Day

Parade, then more than three months in the past), and that Cruzado

intended to cash the check and take the money for himself. The

jury could have further inferred from Marrero's testimony that, if

he did not pay Cruzado, the mayor would use his official power to

punish Marrero in the future by withholding city business.

-25-
 c. Extortion of Mundo Construction (Count 14)

Like Cristalería, Mundo Construction was a prospective

contractor with the municipality. Its owner, Vargas, knew Cruzado

from his check-cashing business and had donated free supplies to

his political campaign. As he did with Cristalería’s owner,

Cruzado asked Vargas to pad his price quote with an extra $2,000,

without explaining the purpose of the extra money. Vargas

understood, however, that the money was for the mayor’s private

benefit. When Vargas refused to pay, Cruzado suddenly told him

that there was no money after all for the project to build

sidewalks, curbs, and drainage.

Cruzado assails this conviction as being based on sheer

speculation as to his intent. It is true that, in this instance,

the jury did not have the benefit of following the transaction

through to completion, with the victim’s checks deposited in the

Onaden account (as with Cristalería). However, the jury was well

within its rights to believe Vargas's testimony and to find that

Cruzado canceled the project (which was later built by someone

else) as a reprisal for Vargas’s refusal to submit to his demands

for money.

2. One count of laundering money
from Cristalería (Count 3)

Cruzado received two $2,000 checks from Cristaleria: one

payable to “cash,” and one payable to “Onaden, Inc.” His chauffeur

cashed the first at the check-cashing business of Cruzado's son;

-26-
the second was deposited into Cruzado’s private account.

To convict Cruzado of this offense, the government had to

prove four elements beyond a reasonable doubt: (1) that Cruzado

knowingly conducted a "financial transaction," (2) that he knew the

transaction involved funds that were the proceeds of some form of

unlawful activity, (3) that the funds involved were in fact the

proceeds of a "specified unlawful activity," and (4) that Cruzado

engaged in the financial transaction knowing that it was designed

in whole or in part to conceal or disguise the nature, location,

source, ownership, or control of the proceeds of such unlawful

activity. See U.S.C. § 1956(a)(1)(B)(i); United States v.

Cornier-Ortiz, 361 F.3d 29, 37 (1st Cir. 2004); United States v.

Martínez-Medina, 279 F.3d 105, 115 (1st Cir. 2002). A conviction

requires evidence of intent to disguise or conceal the transaction,

whether from direct evidence, like the defendant’s own statements,

or from circumstantial evidence, like the use of a third party to

disguise the true owner, or unusual secrecy. See United States v.

Castro-Lara, 970 F.2d 976, 981 (1st Cir. 1992) (“[C]ircumstantial

evidence, in and of itself, is often enough to ground a

conviction.”); see also Bourjaily v. United States, 483 U.S. 171,

179-80 (1987) (“[I]ndividual pieces of evidence, insufficient in

themselves to prove a point, may in cumulation prove it.”).

Cruzado essentially challenges only the fourth element,

intent to conceal. In his view, merely depositing his ill-gotten

-27-
gains in the account of Oficina Dental Las Colinas, Inc., hardly

signifies an intent to conceal. Cruzado was well known all over

Vega Alta as the mayor and as a prominent citizen, and, according

to him, no rational jury could conclude that Cruzado was trying to

conceal the source of the money by depositing it in a bank where

everyone knew him and knew his sources of income.

We are, to say the least, unconvinced by this argument.

Cruzado deposited these funds, as he did with the other sums he

acquired, in an account in the name of his then-wife’s former

dental practice, for which he was the only signatory, and which he

failed to report upon being elected mayor. No one else knew of the

account. Every witness asked about the account testified that he

or she had never heard of “Onaden,” but assumed that it was

legitimate on the mayor’s authority. A reasonable jury could

easily have concluded that Cruzado intended to conceal the money

there and use it for his own private purposes. We see no “clear

and gross injustice” in this conviction. Hadfield, 918 F.2d at

996.

B. Cruzado's preserved challenges

1. One count of embezzlement or theft of more than
$5,000 from Vega Alta (count 1)

To convict Cruzado on this count, the government had to

prove three elements beyond a reasonable doubt: (i) that Cruzado

was “an agent of an organization, or of a State, local, or Indian

tribal government, or any agency thereof;” (ii) that Cruzado

-28-
embezzled, stole, obtained by fraud, or converted or intentionally

misapplied property “valued at $5,000 or more” from “such

organization, government, or agency;” and (iii) that such

“organization, government, or agency receives, in any one year

period [federal funds] in excess of $10,000.” 18 U.S.C. § 666(a)

and (b). Theft can be committed in a variety of ways under § 666.

“The first four prohibitions cover any possibility of taking money

for one’s own use or benefit. Intentional misapplication, in order

to avoid redundancy, must mean intentional misapplication for

otherwise legitimate purposes; if it were for illegitimate

purposes, it would be covered by the prohibitions against

embezzlement, stealing, obtaining by fraud, or conversion." United

States v. Urlacher, 979 F.2d 935, 938 (2d Cir. 1992) (quoted in

United States v. Cornier-Ortiz, 361 F.3d 29, 36-37 (1st Cir.

2004)). The total value of funds stolen can be aggregated to

satisfy the $5,000 minimum that triggers criminal liability under

§ 666. United States v. Sanderson, 966 F.2d 184, 189 (6th Cir.

1992).

Cruzado concedes on appeal that he was an agent of a

local government -- namely, the mayor of Vega Alta -- which

received $10,000 or more in federal funds within a one-year period.

He maintains, however, that the government failed to present

sufficient evidence to allow a reasonable jury to conclude that he

embezzled or stole more than $5,000 from Vega Alta. Without

-29-
explanation, Cruzado limits his possible wrongdoing to two

transactions: (1) Centro Cultural’s $4,165 check to Onaden, which

Cruzado wrote while in New York at the Puerto Rico Day Parade; and

(2) the $1,756 check made out to “cash,” which he obtained from

Ebanistería Familia’s owner, Colón, and which represented an

overpayment from Vega Alta for work that Colón had not done.

Cruzado argues that, first, he spent the $4,165 on

expenses related to the trip to New York. Even if he had not,

however, the money belonged not to the municipality but to the

parade committee, which had received it from Vega Alta with “no

strings attached.” Therefore, if Cruzado stole any money, he did

so from the committee, not Vega Alta. Second, Cruzado maintains

that Colón owed him the $1,756 as interest on the money that Colón

had borrowed from him as an advance. As noted, after Cruzado

claimed that the municipality would not pay a deposit on Colón’s

newly contracted job (as Colón’s other customers did), the mayor

offered to provide a loan from his son's check-cashing business, El

Cajero Expresso. Cruzado, in his words, “might be guilty of being

a smart businessman and/or a usurer, but he was not being accused

of usury.”

The facts, when viewed in the light most favorable to the

government, easily support Cruzado’s conviction on this count.

First of all, as the government points out, Cruzado neglects to

consider other incidents besides the two he cites as possibilities.

-30-
For example, there was the $4,000 that he instructed Cristalería’s

owner to skim from Vega Alta’s double payment to him (one payment

from Vega Alta’s trust account, and one from its regular checking

account). While arguing against the extortion conviction vis-à-vis

Cristalería, Cruzado himself virtually concedes the theft by

writing, “Clearly, the evidence of what occurred on April 5th,

2001, the time period when the crime occurred, points to theft of

Municipal funds, not extortion.” In addition, there were two more

payments related to the trip to New York; in both cases, Cruzado

intercepted reimbursements from Sidney Travel that were intended

for the committee (and, ultimately, the municipality) and deposited

them in his own bank account. Those two payments amounted to

$13,991.54.

Even considering the two payments alone that Cruzado

cites, a reasonable jury could have found beyond a reasonable doubt

that Cruzado took them for his own private gain. First, there is

no evidence that Cruzado spent the $4,165 while in New York; to the

contrary, that check was deposited into the Onaden account on July

3, several weeks after the trip had ended. Cruzado produced no

receipts for the supposed expenditures.

His attempt to avoid the conviction by disputing that the

municipality was the victim also fails. The parade committee, with

Cruzado as its chairman, had agreed that any remaining funds would

be given to the municipality. Furthermore, Vega Alta required an

-31-
accounting of the funds received by the committee. A reasonable

jury could have found that, by taking the $4,165, Cruzado was

intercepting the money from being ultimately reimbursed to the

municipality and such an interception constituted theft under §

666.

A reasonable jury could also have disbelieved Cruzado’s

argument that the $1,756 that Cruzado took from Colón, Ebanistería

Familia’s owner, represented interest on a loan. Cruzado had no

evidence for this interpretation besides his own self-serving

testimony, while Colón testified that Cruzado had specifically

requested that he receive the excess funds from Vega Alta’s

payment. Believing Cruzado’s explanation would require a perfect

coincidence between, on the one hand, the amount that Colón owed

Cruzado in interest and, on the other, Vega Alta’s overpayment to

Colón. The jury could reasonably reject such an argument that

“would elevate coincidence to an art form.” Lara, 181 F.3d at 201.

2. Two counts of extortion

a. Extortion of Sidney Travel (Count 4)

Cruzado twice intercepted refunds that Sidney Travel owed

to the committee (and, ultimately, to the municipality) and

deposited them in his private bank account. First, on May 25,

2001, he went to Sidney Travel and told its owner, Alonso, that

instead of issuing a check to the committee, she should issue a

check payable to Onaden, which he claimed to need for food money

-32-
for children who were traveling to New York. Alonso complied,

issuing the check to a payee she had never heard of, in large part

because of Cruzado’s authority as the mayor. Second, on July 6,

2001, Cruzado again instructed Alonso to issue a check payable to

Onaden, which he deposited in his private account. She complied

again, largely for the same reasons.

Cruzado claims that he was not acting as a public

official but only as the chairman of a non-profit organization

which was unaffiliated with the municipality. Hence, the “under

color of public office” element of extortion does not apply.

Cruzado also argues that the money was due to the committee as a

refund anyway. Cruzado was the authorized representative for the

committee; Alonso knew that. Therefore, a rational jury could not

conclude that Cruzado induced her to part with property for

unlawful reasons, when he was merely asking her for a refund under

the authority that he had. Finally, Cruzado argues that he

returned the money as soon as he could (which happened to be soon

after the government opened its investigation); he notes that there

was no deadline to return the money, and he should not be punished

for the government’s unexpectedly hasty actions.

These are specious arguments. First, Cruzado did not

divest himself of his authority as mayor when he walked in the door

of Sidney Travel, especially when his mission on behalf of the

parade committee was so closely tied to the municipality itself;

-33-
Cruzado was chairman because he was the mayor, the committee had

several other government officials as members, and the committee’s

entire reason for being was the celebration of the municipality’s

225th anniversary. A reasonable jury could have believed that

Cruzado knew that his authority would allow him to obtain the

refunds from Alonso, in return for his continued good graces and

future business from the municipality.

Cruzado’s other two arguments are easily dispatched. His

argument that the money was owed to the committee anyway is simply

question-begging. Of course the money was owed to the committee.

Cruzado’s criminal conduct relates to what happened to that money

before it could get to the committee. Finally, Cruzado’s argument

that he returned the money (a point which he repeated throughout

trial and on appeal) is little more than an implicit admission of

guilt and a plea for leniency. The jury was entitled to accord

little if any weight to such eleventh-hour maneuvers.

In short, Cruzado’s mishmash of allegedly innocent

mistakes and neutral explanations fails to convince us that a

reasonable jury could not have found Cruzado guilty of extorting

money from Sidney Travel.

b. Extortion of Vega Alta Medical Hospital (Count 6)

On July 10, 2001, after Cruzado had arrived at the CDT

asking for money, Dr. Rivera gave the mayor a $5,000 check payable

to Onaden. Dr. Rivera testified that he understood the payment to

-34-
be for the air conditioner that had been installed in the CDT’s

dentistry office (at Cruzado’s instruction), even though that air

conditioner had by then been removed (again, at Cruzado’s

instruction). Dr. González, meanwhile, had earlier promised to

give the mayor a $5,000 political contribution; he testified that

he understood the July 10 payment to be for that purpose.

Cruzado repeats here his argument that what looks like

extortion was in fact only a political contribution. To sustain a

conviction under the Hobbs Act for political contributions, he

stresses, requires showing that the public official promised a

specific quid pro quo, see McCormick, 500 U.S. at 274, and he did

not promise anything. In support of his argument, he describes the

two doctors’ testimony as contradictory, resolving that supposed

contradiction in favor of Dr. González’s professed understanding

that the $5,000 payment was a political contribution. Cruzado

argues that Dr. Rivera would not have paid for an air conditioner

on July 10 which had already been removed by June 14. In Cruzado’s

view, then, Dr. Rivera testified untruthfully, and the $5,000 check

must have been a political contribution as testified to by the

person who authorized the check, Dr. González.

A reasonable jury could have found beyond a reasonable

doubt that, despite the past discussion between the mayor and Dr.

González of a political contribution, Cruzado asked for a check

made out to “Onaden” so that he could deposit the check in his own

-35-
private bank account, and the doctors were too scared to refuse

him. After all, they both testified to their critical dependence

on the municipality for ambulance service. The jury could have

further concluded that the sham invoice given to Dr. Rivera served

to cover the illegal conduct initiated by Cruzado. The mystery of

paying for an air conditioner that had already been removed from

the CDT's premises only further buttresses such an inference. And

Cruzado never explains what connection Onaden might have had to

Cruzado’s Popular Democratic Party, or why he gave Dr. Rivera an

invoice for air-conditioning work in exchange for a political

contribution.

3. Four counts of laundering money

Cruzado was convicted of laundering money derived from

illegal transactions involving Sidney Travel (counts 5 and 8),

Centro Cultural (count 7), and Vega Alta Medical Hospital (count

9). Cruzado’s argument here is the same as his argument for the

count charging him with laundering money from Cristalería: no

rational jury could conclude that Cruzado was trying to conceal the

source of his money, when he was simply depositing the money in a

bank where everyone knew him and knew his sources of income.

Our response, too, remains the same. A reasonable jury

could easily have concluded that Cruzado was concealing these funds

in the Onaden account, which was unknown to anyone else and for

which he was the only signatory. That is a paradigm case of money

-36-
laundering, and a reasonable jury was free to so find beyond a

reasonable doubt.

4. One count of tampering with three potential witnesses
(Count 11)9

To convict Cruzado on this count, the government had to

prove beyond a reasonable doubt that he: (i) knowingly (ii) used

intimidation, threatened, corruptly persuaded another person, or

attempted to do so, or engaged in misleading conduct toward another

person (iii) with intent to influence testimony (iv) in an official

proceeding. 18 U.S.C. § 1512(b)(1). Trying to persuade a witness

to give false testimony counts as “corruptly persuading” under §

1512(b). United States v. Khatami, 280 F.3d 907, 912-13 (9th Cir.

2002) (citing cases). However, “it is an affirmative defense, as

to which the defendant has the burden of proof by a preponderance

of the evidence, that the conduct consisted solely of lawful

conduct and that the defendant’s sole intention was to encourage,

induce, or cause the other person to testify truthfully.” 18

U.S.C. § 1512(e) (2005) (formerly subsection (d)).

The jury found Cruzado guilty of tampering or attempting

to tamper with the testimony of Cuevas (Cristalería's owner) on or

9
Cruzado erroneously contends that the jury found him guilty
of tampering with Lilia Alonso Alvarez (Sidney Travel's owner) in
a telephone call on August 4, 2001; Milton Martínez Arroyo (owner
of Martínez Air Conditioning) in late 2000 or early 2001; and Luis
A. Vargas López (owner of Mundo Construction, Inc.) in a telephone
call on December 9, 2001. The jury found him not guilty as to
those incidents.

-37-
about October 9, 2001; Drs. González and Rivera (owners of Vega

Alta Medical Hospital, Inc.) on October 17, 2001; and Marrero

(owner of Premier Electrical) in a telephone call on December 10,

2001.

Cruzado’s argument is simple: all he did was urge

witnesses to tell the truth, which is not a crime. According to

the witnesses, Cruzado did ask that they tell the truth; however,

his version of “the truth” that he urged upon them was anything but

the truth. To Cuevas, Cruzado described the $4,000 as repayment of

a loan extended to Cuevas before he became mayor. At first, Cuevas

maintained that story in front of the FBI. He then changed his

tune, admitting that the money was skimmed from the inflated bid he

submitted to Vega Alta and the double payment he received in

return. As for the doctors, the jury was entitled to reject

Cruzado’s characterization of the $5,000 payment as a political

contribution, and instead find that the doctors’ need for the

mayor’s good graces induced them to hand over the money. Even with

respect to Dr. Rivera’s testimony -- that he believed the money was

for the air conditioner, as evidenced by the invoice he received

(on Onaden letterhead) -- the jury could have found that Cruzado

was trying to persuade a witness to testify to something other than

his true beliefs. Finally, the jury could have found that

Cruzado’s repeated calls to Marrero and his continued interest in

Marrero's business affairs, which culminated in Marrero's hiring a

-38-
lawyer to send a cease-and-desist letter, constituted tampering.

III.

A. Choosing the correct guidelines manual

As a threshold matter, a sentencing court must first

decide which edition of the sentencing guidelines to use. A

defendant should be sentenced according to the guidelines in effect

on the date of sentencing, unless "the court determines that use of

the Guidelines Manual in effect on the date that the defendant is

sentenced would violate the ex post facto clause of the United

States Constitution,” in which case “the court shall use the

Guidelines Manual in effect on the date that the offense of

conviction was committed." USSG § 1B1.11(b)(1).10 Cruzado was

sentenced on November 8, 2002, seven days after the November 1

effective date of the 2002 guidelines. Nevertheless, the PSR used

a two-year-old edition of the guidelines, its only explanation

being the flat assertion that the "2000 edition . . . has been used

in this case to comply with the provisions of Guidelines §

1B1.11(b)(1)." The district court followed the PSR's lead and

sentenced Cruzado under the 2000 edition of the guidelines.

The PSR and the district court made a mistake, however,

10
The Constitutional prohibition against ex post facto laws,
U.S. Const., art. I, § 9, cl. 3, requires that a defendant be
sentenced under the guidelines in effect when he committed the
offense, rather than those in effect at time of sentencing, where
subsequent amendments would have increased his punishment. See
United States v. Colón-Muñoz, 318 F.3d 348, 361 (1st Cir. 2003).

-39-
because Cruzado’s last offense of conviction occurred on December

10, 2001, thereby making the 2001 guidelines –- not 2000 –- the

relevant comparison with the 2002 guidelines for ex post facto

purposes. Even in a complex case like this one, involving conduct

that occurred on dates implicating different versions of the

manual, "it will not be necessary to compare more than two manuals

to determine the applicable guideline range -- the manual in effect

at the time the last offense of conviction was completed and the

manual in effect at the time of sentencing." Id. § 1B1.11, cmt.

background (emphasis added).

Count 11 charged Cruzado with, among other things,

unlawful conduct on December 10, 2001 -- tampering with the owner

of Premier Electrical. Cruzado was convicted of that offense.

December 10, 2001, was more than a month after the effective date

of the guidelines' 2001 edition. Therefore, the comparison for ex

post facto purposes is between the 2002 edition and the 2001

edition. As it turns out, the relevant sentencing guidelines did

not change between those two years. Therefore, Cruzado is right

that he should have been sentenced under the 2002 guidelines, and

the court, misled by the PSR, plainly erred in applying the 2000

guidelines.

B. Reasons for remanding

Arguably, we could continue our analysis to see if

Cruzado was prejudiced by the application of the 2000 guidelines.

-40-
See United States v. Sedoma, 332 F.3d 20, 28 (1st Cir. 2003)

(reviewing a sentence for plain error). That analysis might reveal

that a sentence under the 2002 guidelines would involve the same

guidelines range as the 2000 guidelines. On the other hand,

Cruzado argues that he would receive a lower sentence under the

2002 guidelines, while the government and the district court

believe that he would receive a higher sentence. For two reasons,

however, we decline to undertake such an analysis here.

First, between the 2000 and 2002 editions, the sentencing

commission introduced a major change in the way that sentences for

money laundering are calculated. The 2000 guidelines simply gave

a fixed number as the base offense level for money laundering. The

2002 guidelines take a more complicated approach by incorporating

the offense level of the underlying offense.11 Sentencing under

that new regime might involve factual disputes or legal issues

which the district court has not yet had an opportunity to address.

If we were to explore this uncharted territory ourselves, we, in

effect, would be doing the sentencing rather than the district

court. That is not an appropriate allocation of functions. See

Koon v. United States, 518 U.S. 81, 98 (1996) ("District courts

have an institutional advantage over appellate courts" in some

11
The laundering guideline says to use the "offense level for
the underlying offense from which the laundered funds were derived,
if (A) the defendant committed the underlying offense . . . ; and
(B) the offense level for that offense can be determined." USSG §
2S1.1(a)(1). Both conditions are true for Cruzado.

-41-
sentencing matters.); United States v. Rivera, 994 F.2d 942, 950

(1st Cir. 1993) (Breyer, C.J.) (referring to district courts'

"institutional strength" as being able to "best understand the

relation of the Guidelines to case-specific, detailed facts").

Second, after United States v. Booker, 543 U.S. __, 125

S. Ct. 738 (2005), the sentencing guidelines are now advisory

rather than mandatory. See also United States v. Antonakopoulos,

399 F.3d 68 (1st Cir. 2005). That legal development injects even

more uncertainty into an attempt by us to reconstruct a sentencing

decision by the district court under the 2002 guidelines.

Therefore, we conclude that the most prudent course is to vacate

the sentence and remand for resentencing under the correct edition

of the guidelines.

IV.

We AFFIRM Cruzado’s convictions. We VACATE Cruzado’s

sentence and REMAND for further proceedings not inconsistent with

this opinion.

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 Appendix

Embezzlement & Extortion Laundering 12 Tampering
Theft

Count 1: 18 Between Mar.
U.S.C. § 2001 & Jan.
666(a)(1)(A) 25, 2002:
stole more
(i) and than $5,000
(a)(1)(A)(ii) from Vega
Alta.

Count 2: id. § April 5,
1951(a) 2001: $4,000
from
Cristalería

Count 3: id. April 6, 2001:
1956(a)(1)(B)(i) cashed one
and $2,000 check,
(a)(1)(B)(ii) deposited
another $2,000
check from
Cristalería

Count 4: id. § May 25 &
1951(a) July 6,
2001:
$13,991.54
in refunds
from Sidney
Travel

Count 5: id. § May 30, 2001:
1956(a)(1)(B)(i) deposited
and $5,816.74 check
(a)(1)(B)(ii) from Sidney
Travel

Count 6: id. § May 25 &
1951(a) July 6,
2001: $5,000
from Vega
Alta Medical
Hospital

Count 7: id. § July 3, 2001:
1956(a)(1)(B)(i) deposited $4,165
and check from
(a)(1)(B)(ii) Centro Cultural

12
Except where noted (i.e., count 10), all deposits were
checks made payable to Onaden, Inc., and deposited into Cruzado’s
“Oficina Dental Las Colinas, Inc.” account at Banco Popular, Vega
Alta branch.

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 Count 8: id. § July 9, 2001:
1956(a)(1)(B)(i) deposited
and $8,174.80 check
(a)(1)(B)(ii) from Sidney
Travel

Count 9: id. § July 11, 2001:
1956(a)(1)(B)(i) deposited $5,000
and check from Vega
(a)(1)(B)(ii) Alta Medical
Hospital

Count 10 (later Sept. 25, 2001:
dismissed): id. deposited
§ $3,788.51 check
1956(a)(1)(B)(i) from Centro
and Cultural to
(a)(1)(B)(ii) “Cash” in “El
Cajero Expresso"
account

Count 11: id. § Between Aug.
1512(b)(1) and 2001 & Dec.
(b)(2) 2001, tampered
with owners of
Cristalería,
Vega Alta
Medical
hospital, &
Premier
Electrical
(found not
guilty of
tampering with
Sidney Travel,
Martínez Air
Conditioning, &
Mundo
Construction)

Count 12 (not June & July
guilty): id. § 3, 2001:
1951(a) Cristalería

Count 13: id. § Between
1951(a) Sept. & Oct.
15, 2001:
$10,000 from
Premier
Electrical

Count 14: id. § Sept. & Oct.
1951(a) 2001: $2,000
from Mundo
Construction

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