United States Court of Appeals
For the First Circuit
No. 02-1818
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE A. VÁZQUEZ-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
Porfilio,* Senior Circuit Judge,
and Howard, Circuit Judge.
Edward J. DeAngelo, was on brief, for appellant.
Sonia I. Torres-Pabón, Assistant United States Attorney,
Chief, Criminal Division, with whom H.S. García, United States
Attorney, and Germán A. Rieckehoff, Assistant United States
Attorney, were on brief, for appellee.
May 18, 2005
*
Of the Tenth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Defendant-appellant Jorge A.
Vázquez Rivera ("defendant") appeals from his conviction on one
count of conspiracy to possess cocaine and heroin with intent to
distribute under 21 U.S.C. § 846. For the reasons stated below, we
affirm his conviction.
I.
We recount the relevant facts in the light most favorable
to the jury verdict. See United States v. Casas, 356 F.3d 104, 109
(1st Cir. 2004).
The government presented the testimony of seven witnesses
in its case in chief, six of whom testified pursuant to plea
agreements. José Borrero Feliciano ("Borrero") testified that,
after he was released from prison in 1991, he approached defendant
about working for him in the drug business. Borrero stated that,
after defendant consulted with Roberto Soto Andón ("Soto"), he
began selling cocaine and heroin on behalf of defendant and Soto.
According to Borrero, defendant told him that he was in charge of
the drug point at the La Ceiba Housing Project in Ponce, Puerto
Rico ("the Ceiba drug point"). Borrero stated that he never saw
defendant sell drugs on the street, but that he went to defendant's
home to replenish his drug supplies.
Alberto Negrón Constantino ("Negrón") testified that he
met defendant in 1995 and sold him cocaine and heroin for
distribution by Soto's drug operation. Negrón initially sold
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cocaine and heroin to defendant's brother Víctor Vázquez Rivera.
In late 1996 or early 1997, Negrón began working for Soto.
According to Negrón, Soto removed defendant as the head of the
Ceiba drug point. Negrón then took over the Ceiba drug point and
began purchasing the cocaine and heroin for the drug point himself.
Another co-conspirator, Daniel Sánchez Ortiz ("Sánchez"), testified
that he was a drug runner in the Soto organization and that he
bought and sold drugs from defendant's brother. While Sánchez
never dealt directly with defendant, he was instructed by Víctor
Vázquez Rivera that he was acting on behalf of defendant.
Another witness, Edwin Meléndez Negrón, stated that he
had been supplied drugs by defendant for his drug point elsewhere
in the Ponce area. In addition, he testified that he went to Las
Cucharas jail in Ponce, Puerto Rico with defendant to visit Soto
while he was confined there. Alexander Figueroa Delgado testified
that he lived for about a month with a cousin who sold heroin for
defendant. Finally, Yazmin Laracuente Alameda testified that after
her husband was arrested on drug charges, she began selling cocaine
for defendant.
Defendant appealed from the jury verdict, alleging the
following: (1) improper testimony from a government witness; (2)
the prosecutor's closing arguments were rife with error; and (3)
defendant's sentence was improperly enhanced. In supplemental
briefing, defendant also appealed his sentence on the basis that it
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was imposed in violation of United States v. Booker, 125 S. Ct. 738
(2005). We address each argument in turn.
II.
A. Improper Testimony
Defendant argues on appeal that the case agent, Iván
Lugo, gave improper vouching testimony. Because there was no
contemporaneous objection, we review for plain error. To show
plain error, a defendant must show that an error occurred, which
was clear and obvious; and that it affected defendant's substantial
rights and seriously impaired the fairness, integrity or public
reputation of the public proceedings. See United States v. Pérez-
Ruiz, 353 F.3d 1, 9 (1st Cir. 2003).
Defendant argues that the testimony of Agent Lugo was
improper because, in the course of rebuttal, the prosecution twice
elicited a statement from Lugo purporting to "certify" that Víctor
Vázquez Rivera, defendant's brother, would not have received a
safety valve credit if he had not incriminated the defendant.
Further, defendant argues, it was improper to allow testimony that
Agent Lugo "already knew" that defendant was involved in drug
trafficking.
Improper vouching occurs when "prosecutors . . . place
the prestige of the United States behind a witness by making
personal assurances of credibility or by suggesting that facts not
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before the jury support the witness's account." United States v.
Torres-Galindo, 206 F.3d 136, 140 (1st Cir. 2000).
Agent Lugo initially testified in the government's case
in chief. The statements that defendant objects to on appeal were
given after defendant's brother, Víctor Vázquez Rivera, testified
for the defense. Víctor Vázquez Rivera testified that his brother
was not involved in Roberto Soto's operations and that he had never
distributed cocaine or heroin. In order to impeach Vázquez
Rivera's testimony, the government called Agent Lugo to the stand
again. He testified to the following:
Q [by AUSA]: Sir, did you have an
opportunity to interview Víctor Vázquez
Rivera?
Agent Lugo: Yes, ma'am.
Q: And what was the purpose of that
interview?
A: It was a safety valve debriefing.
Q: Please explain to the members of
the jury, what is a safety valve debriefing?
A: Safety valve debriefing is an
opportunity for the defendant [referring to
Víctor Vázquez Rivera] to speak to the
government and give us his admissions of their
[sic] criminal activities. And this statement
cannot be used against him once [he] give[s]
it to us at that particular time, and in
return they receive the benefit of the safety
valve debriefing.
Q: When you say give the opportunity,
[Víctor Vázquez Rivera] an opportunity to
speak about him, is he also required under the
law to speak about everything he knows?
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A: Yes, ma'am.
. . . .
THE COURT: Well, when you say about
everything he knows, so that we are exact, the
requirement on the safety valve debriefing is
that he testifies about everything he knows
about the offense that he is pleading to, or
other offenses that have a common scheme or
plan with that offense . . . .
. . . .
Q: Do you recall what, if anything,
did Víctor Vázquez say about Jorge Vázquez,
his brother during that debriefing?
A: Yes, ma'am. The first thing that I
remember in reference to that is when I
started talking to him about his brother and
Robert[o Soto-Andón], he refused to talk. He
said that he wasn't going to say anything
regarding his brother or Robert[o Soto-Andón].
And at that point --
. . . .
A: At that point he was advised, you
know, that if he didn't say everything that he
knew, he couldn't receive credit.
He kept stubbornly saying that he
wasn't going to say anything, that he didn't
care.
At that point I contacted the U.S.
Attorney's Office and advised them of the
problem I was having. And you know, it was
conveyed to Mr. Vázquez, Víctor Vázquez, that
he had to say everything that he knew related
to the charges that he had been involved, with
the criminal activities he had been charged,
and that part of that was talking about his
brother.
He stated that he was not going to
testify against his brother or anybody else
and then reluctantly admitted his brother
worked for Robert[o Soto-Andón], he was a
runner for [him].
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. . . .
Q: Sir, do you know if the government
certified later on [sic] the court that Víctor
Vázquez had complied with meeting with the
United States and providing all information he
had?
A: Yes, ma'am.
. . . .
Q: [After Agent Lugo was shown a copy
of his notes] Sir, is this the only reference
to Robert[o Soto-Andón] and [defendant] in any
of these notes?
A: Yes, ma'am. If you notice, it has
the asterisk next to it, that was when we
reached the point during the interview that I
began to have the problem that I mentioned
earlier with Mr. Víctor Vázquez. Once I asked
him about Robert[o Soto-Andón] and his
brother, that was when we had that problem and
I made those notations there, the asterisk.
Also, the part about [defendant] being a
"compadre" of --
Q: Why did you put that down?
A: Because I didn't know that. I knew
about Robert[o Soto-Andón] organization, about
the drug trafficking, but I had no knowledge
that [defendant] was the "compadre" of
Robert[o Soto-Andón]. So I felt that was
something I had to write down to remember it.
Q: Who gave you that information?
A: Víctor Vázquez, ma'am . . . .
After defendant's counsel cross-examined Agent Lugo
regarding his taking of notes during the safety valve debriefing,
Agent Lugo gave the following testimony on redirect:
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Q: Mr. Lugo, would the government have
certified that Víctor Vázquez had provided the
information if he had not stated the
information about his brother?
. . . .
A: No, the government would not certify him.
Defendant argues that Agent Lugo attempted to vouch for
the credibility of Víctor Vázquez Rivera. Defendant's argument
fails because Agent Lugo was not attempting to bolster the
credibility of any witness, he was merely explaining the procedure
under 18 U.S.C. § 3553(f). Agent Lugo was not, as defendant
suggests, stating that Víctor Vázquez Rivera told the truth at the
safety valve hearing, although that is its purpose. See generally
United States v. Matos, 328 F.3d 34, 39 (1st Cir. 2003)(stating
that "a safety valve debriefing is a situation that cries out for
straight talk; equivocations, half-truths, and veiled allusions
will not do"). Instead, the statement was introduced to show that
Víctor Vázquez Rivera gave a prior inconsistent statement to Agent
Lugo, which contradicted his testimony during the trial. The
statement was couched in terms of the certification, but that was
not meant to imply that the government was vouching for Víctor
Vázquez Rivera's credibility; in fact, it sought the opposite -- to
impeach by providing a statement which contradicted his trial
testimony. Cf. Pérez-Ruiz, 353 F.3d at 12 (the prohibition on
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vouching extends to propping up a dubious witness through the
testimony of a government agent).
Defendant also objects to the agent's testimony regarding
his knowledge of the drug operation as inadmissible hearsay, and
points to United States v. Casas, 356 F.3d 104 (1st Cir. 2004), as
analogous to this appeal. In Casas, we held that the testimony of
a government agent that the defendants were members of a drug
conspiracy was inadmissible hearsay. Id. at 117-18. Defendant's
argument must be rejected, however, because here the statement was
not offered to prove that a conspiracy existed, but only to explain
why the agent's notes had omitted certain information. See Fed. R.
Evid. 801(c)(stating that hearsay is "a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted").
In Casas, the testimony was given by the case agent to prove that
the conspiracy existed. Id. at 118 (stating that the agent
testified as to the existence of the drug trafficking organization,
that all four defendants were members and that the organization
handled cocaine and heroin). It was found to be reversible error
to admit the testimonial statement in that case because it sought
to establish the existence of the conspiracy, i.e., the ultimate
issue in the case, before the jury had made that determination.
Here, as the statement was not offered for its truth, it is not
hearsay.
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Defendant also argues that the statement regarding the
safety valve hearing was improper hearsay testimony. Where, as
here, a statement is introduced to impeach a statement that a
witness provided on direct examination, the statement is admissible
for that purpose. The government argues that the evidence is
admissible under Fed. R. Evid. 613(b), which provides for the
admissibility of extrinsic evidence of a prior inconsistent
statement by a witness as long as the witness is afforded an
opportunity to explain or deny his statement. See United States v.
Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999)(holding that
"comparison and contradiction are the hallmarks of Rule 613(b)").
In this case, Víctor Vázquez Rivera testified and was cross-
examined and had ample opportunity to explain himself. Id. at 559.
There was no error in allowing the testimony.
B. Closing Argument
Defendant argues that the Assistant United States
Attorney engaged in prosecutorial misconduct during closing
argument and rebuttal. Because there was no objection made in the
district court during the closing argument, we review only for
plain error. See Pérez-Ruiz, 353 F.3d at 9 (citing United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
1. Vouching During Closing Argument
"A prosecutor improperly vouches for a witness when she
places the prestige of her office behind the government's case by,
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say, imparting her personal belief in a witness's veracity or
implying that the jury should credit the prosecution's evidence
simply because the government can be trusted." Pérez-Ruiz, 353
F.3d at 9 (citing United States v. Figueroa-Encarnación, 343 F.3d
23, 28 (1st Cir. 2000)).
The defense alleges that the following statements made
during closing arguments constituted improper vouching:
[d]id [Víctor] implicate his brother? If not,
how did he get that advantage from ten to
five? Because he complied with the safety
valve, and he was told this is a confidential
things [sic], this is for intelligence
purposes.
. . .
Couldn't Agent Lugo come up with a
better story if we're going to talk about, you
know, I'm going to come and "cuadrar esto"1 to
say something that didn't happen. Consider
what was not said, look at those notes.
Couldn't Agent Lugo put, "Yes, he told me
this, this, and this, and this didn't happen."
Wouldn't that be a better story to present
before the jury?
And that's one thing I also ask you,
when you consider are these people making up
stories, couldn't they have made up a better
story? They've been in jail for four years,
couldn't everything have come in here
"cuadrao," he lived here, he did this and
this. They had all the time in the world, but
that was not the case. They had
contradictions like human beings are [sic].
1
"Square this."
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According to defendant, the prosecution improperly
vouched for witnesses during closing argument because it used the
fact that Víctor Vázquez Rivera got a safety valve reduction as
evidence of his truthfulness. Defendant argues that the government
put its prestige behind Víctor Vázquez Rivera's testimony.
Defendant argues that under United States v. Auch, 187
F.3d 125, 131-32 (1st Cir. 1999), and United States v. Manning, 23
F.3d 570, 572-73 (1st Cir. 1994), this type of vouching amounts to
prosecutorial misconduct.2 In Pérez-Ruiz, we made clear that any
dictum from Auch, which "rest[ed] on an understandable misreading
of [Manning]," was disclaimed. Pérez-Ruiz, 353 F.3d at 10 (stating
that the statements made in Auch were not good law). During the
course of the trial, defendant questioned the veracity of every
witness in the government's case in chief, charging them with bias
resulting from their negotiated plea and cooperating agreements.
The closing argument was "a logical counter to the
assertions of defense counsel, made in summation, that various
government witnesses had fabricated their testimony because they
2
In Manning, this court condemned as vouching a portion of the
prosecutor's statement containing the argument that a detective
would have created a more damaging story had he intended to
fabricate evidence. Manning, 23 F.3d at 572. The portion found to
constitute vouching, though, consisted of statements at the
conclusion of this line of argument to the effect that government
witnesses do not lie. Id. at 572-73. In dictum in Auch, the
Manning ruling was mischaracterized to suggest that the argument
that a witness would have fabricated a better story had he intended
to lie amounts to vouching. Auch, 187 F.3d at 131-32.
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wanted the [defendant] behind bars and would stop at nothing to put
him there. We typically cede prosecutors some latitude in
responding to defense counsel's allegations of fabrication."
Pérez-Ruiz, 353 F.3d at 9-10. Given the defense's strategy, we
believe that the prosecutor was directly addressing defendant's
numerous allegations of fabrication and not improperly vouching for
witnesses by placing the government's prestige behind them.
2. Reference to murder conviction
Defendant argues that the prosecution made a gratuitous
reference to Soto's murder conviction by saying that he was serving
time for murder when defendant visited him at Las Cucharas and that
the prosecutor argued guilt by association. "A defendant is
entitled to have the question of his guilt determined by the
evidence against him, not on whether a co-defendant or government
witness has been convicted of the same charge." United States v.
Dworken, 855 F.2d 12, 30 (1st Cir. 1988).
On the first day of trial, the government and defendant
informed the judge that they had reached an agreement not to
mention most or any murders that involved witnesses. Soto was
convicted of first degree murder and released on probation before
the conspiracy at issue here began. The government's theory of the
case involved the defendant's visits to Soto's house, in particular
where he went with a government witness during Soto's probation.
Defendant concedes that this association was relevant to the
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conspiracy, but argues that there was no need to mention the
conviction and the only reason that the prosecutor did so was so
the jury would be more likely to convict.
The government argues that evidence of the murder
conviction was already entered into the record through the
testimony of several witnesses. See United States v. McKeeve, 131
F.3d 1, 14 (1st Cir. 1997)(holding that a prosecutor may accurately
describe the testimony the jury already heard through witness
testimony in the closing). The record reveals that the comment
defendant identifies referred to his continued assistance of Soto
even after his murder conviction. There was nothing improper in
stating a fact that had already been entered into the record,
particularly since the comment did not implicate defendant in any
murder. The charge of conspiracy was, in context, related to
defendant's role as Soto's second in command for a certain period
of time, which included the time Soto was on probation, under house
arrest for first degree murder.
Moreover, at the beginning of the trial, counsel agreed
that while certain murders would not be mentioned to the jury,
there were some murders incidental to the conspiracy which would be
entered into evidence. Because there was a specific agreement
between the parties, we are convinced this could not rise to any
error on the part of the district court. See Casas, 356 F.3d at
126 (where defendant specifically agreed to let the court inform
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the jury about a plea agreement -- which contained mention of
murders -- objections are waived).
3. Improper Appeal to Jury's Passion And Prejudice
Defendant argues that the cumulative effect of the
closing was to inflame the jury's passions to deprive him of a fair
trial. Defendant argues that the closing, as excerpted below,
incited the jury to find him guilty.
[T]here's going to be argument, oh, they were
really bad people, they would rob, all they
did was sell drugs, and they would consume
drugs. But when you hear that argument, ask
yourself, people like Borrero, who was he
selling drugs for? [Defendant]. People who
are smarter than him. People who have better
opportunities than people like [Borrero] that
just grew up at the Ceiba Housing Project,
that never had an education, never had an
opportunity.
And you think about Alexander Figueroa.
Oh, he's a convicted murderer. And yes, he
is, and he's a despicable human being, a
person that had no pity for people like
Jeannette, the 19-year-old girl that he
carjacked. When you examine his testimony, I
invite you, ladies and gentlemen, to consider
what has Alex Figueroa done all his life?
Since he was 12 years old, all he did was
consume narcotics, 'meterse drogas' as they
say, and rob. And rob for what? To get more
money, to get more drugs.
And who was [sic] the drugs he was
selling for? [Defendant]. I submit to you
when you consider credibility, you say
Alexander Figueroa is real bad, we agree he is
real bad. But who was he doing that for? For
people like [defendant], that you heard
evidence, even from [defense] witnesses, that
had better opportunities in life. That's who
he was selling drugs for.
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These statements are of the species of commentary that
may inflame the jury's passion. Not only was the issue of drug
trafficking addressed as social malaise, but it seemed to introduce
an element of social standing into the closing -- that defendant
was more guilty than the others because he had had the opportunity
to do something with his life, but instead chose drug trafficking.
We cannot say, however, that "[t]hese comments interjected issues
having no bearing on the defendant's guilt or innocence and
improperly appealed to the jury to act in ways other than as
dispassionate arbiters of the facts." United States v. Mooney, 315
F.3d 54, 59 (1st Cir. 2002)(citations omitted). Defendant relies
on United States v. Arrieta-Agressot, 3 F.3d 525, 527 (1st Cir.
1993), which found that the prosecutor's highly emotional argument,
coupled with the lack of a curative instruction, was reversible
error. Id. Determining whether the comments are objectionable is
not the end of the inquiry. "Improper remarks are grounds for
reversal only if they 'so poisoned the well' as to have likely
affected the trial's outcome." Mooney, 315 F.3d at 60 (quoting
United States v. Cartagena-Carrasquillo, 70 F.3d 713 706, 713 (1st
Cir. 1995)). We cannot say these closing remarks would have
affected the trial's outcome. The comments were brief, isolated,
and repetitive of witnesses' own testimony during the government's
case in chief. Mooney, 315 F.3d at 60.
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Defendant also argues that the prosecution, in closing,
improperly referred to defendant's testimony, intimating it was
untruthful. The prosecutor stated "[w]ho has the most interest in
the outcome of this case? [Defendant], who takes the stand and
tells you, ladies and gentlemen, that [Soto's] dad asked him to go
visit him in jail so he can talk to him." However, on this issue,
as above, the government argues that the defense had put every
witnesses's credibility at issue. Under such circumstances, this
type of reference cannot fairly be construed as an inappropriate
reference to defendant's credibility. See Pérez-Ruiz, 353 F.3d at
9-10.
Finally, defendant argues that, given the prosecution's
behavior during the trial, he was denied a fair trial. We have
held that "individual errors insufficient of themselves to
necessitate a new trial may in the aggregate have a more
debilitating effect." United States v. Sepúlveda, 15 F.3d 1161,
1195-96 (1st Cir. 1993). Defendant argues that this was such a
case because: there was sufficient reason to disbelieve the
government's witnesses given their strong incentives to testify
against defendant; witnesses' testimony had factual errors; they
were all housed in the same federal prison; and the prosecution had
no physical evidence against defendant. Since we believe no errors
were committed in the course of the trial, defendant's argument
regarding due process fails.
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C. Sentencing
Following the jury verdict, the defendant's case was
transferred to a sentencing judge who reviewed the trial transcript
and imposed a sentence based on the United States Sentencing
Guidelines ("USSG"). The sentencing judge accepted the pre-
sentence report's ("PSR") drug quantity recommendation of five to
fifteen kilograms, and imposed a three-level enhancement under USSG
§ 3B1.1(b) for the defendant's role in the offense and a two-level
enhancement under USSG § 2D1.1(b)(1) for weapon possession. The
resulting sentencing range was 210 to 262 months. The applicable
range was reduced to 210 to 240 months because of the twenty-year
statutory maximum.3 21 U.S.C. § 841(b)(1)(C). The judge imposed
a sentence of 210 months in prison and three years of supervised
release. The defendant objected to all three of the sentencing
judge's findings in a written response to the PSR, arguing, with
references to Apprendi v. New Jersey, 530 U.S. 466 (2000), that
imposition of a sentence based on facts not found by a jury
constituted a violation of his due process rights.
Both parties submitted supplemental briefing following
the Supreme Court's decisions in Blakely v. Washington, 124 S. Ct.
2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005).
The defendant argues that the sentencing judge violated the rule
3
Without the findings in question, the Guidelines sentencing
range would have been ten to sixteen months.
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announced in Booker by imposing a sentence on the basis of a
mandatory Guidelines system, and that the sentence should therefore
be vacated and the case remanded for resentencing.
The Booker holding applies to all cases, like the present
one, pending on direct review at the time it was decided. 125 S.
Ct. at 769. In United States v. Antonakopoulos, 399 F.3d 68, 76
(1st Cir. 2005), we concluded that "[t]he argument that a Booker
error occurred is preserved if the defendant below argued Apprendi
or Blakely error or that the Guidelines were unconstitutional."
Id. In the pre-Blakely sentencing proceedings below, the defendant
argued, citing Apprendi, that imposition of a Guidelines sentence
based on facts not found by the jury was unconstitutional. Thus,
under the liberal standard of Antonakopoulos, the Booker error was
preserved.
In its supplemental brief on Booker, the government
concedes the error was preserved, but, for the first time, argues
that the defendant has waived the Blakely/Booker argument by
failing to raise it in his initial brief on appeal.4 While we have
4
The government notes, further, that defendant's opening brief
acknowledged that "the sentencing judge correctly determined that
under Apprendi v. New Jersey, 530 U.S 466 (2000), the maximum
sentence was 20 years, under 21 U.S.C. § 846." This assertion --
contained in a footnote describing the sentencing judge's correct
application, due to the absence of a specific quantity in the
indictment or jury findings, of the statutory sentencing range for
an uncharged quantity of drugs -- was not addressed to the
implications of Apprendi for the constitutionality of Guidelines
enhancements based on judge-found facts. We therefore do not read
it as waiving or forfeiting the constitutional objections
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often reiterated that issues raised only in a reply brief or at
oral argument are generally considered waived, we will exercise our
discretion to consider new issues under exceptional circumstances.
See, e.g., N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45
(1st Cir. 2001) ("[A]bsent exceptional circumstances, an appellant
cannot raise an argument for the first time in a reply brief.").
In the instant case, the parties' briefs were submitted prior to a
substantial change in the applicable law wrought by the Supreme
Court's decisions in Blakely and Booker. This change constitutes
an "exceptional circumstance" in which we will permit new issues to
be raised, and we accordingly accepted supplemental briefing from
both sides. See DSC Communications Corp. v. Next Level
Communications, 107 F.3d 322, 326 n.2 (5th Cir. 1997) (finding
issue raised only in supplemental brief not waived because "[w]e
are unwilling to ignore [an] important clarification of the law,
and perpetuate incorrect law, merely because [a controlling case]
was decided after briefing and oral argument in this case"); cf.
Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir. 1990)
(finding argument waived because, inter alia, appellant "did not
make it in the supplemental briefing before us"). Likewise, in our
recent decision in United States v. Serrano-Beauvaix, 400 F.3d 50
(1st Cir. 2005), another panel of this court considered the merits
of a Booker argument not raised in appellant's opening brief. See
underlying the instant Booker argument.
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Supplementa1 Brief for Appellee at 7, United States v. Serrano-
Beauvaix, 400 F.3d 50 (1st Cir. 2005) (No. 02-2286) (arguing that
Booker argument was waived due to failure to assert in opening
brief). Thus, we will proceed to review the defendant's preserved
Booker claim.
1. Standard of review
As we indicated in Antonakopoulos, the Booker error "is
not that a judge (by a preponderance of the evidence) determined
facts under the Guidelines which increased a sentence beyond that
authorized by the jury verdict or an admission by the defendant;
the error is only that the judge did so in a mandatory Guidelines
system." 399 F.3d at 75. Nevertheless, the Supreme Court drew a
distinction in Booker between those cases in which the sentencing
court erred only in applying mandatory Guidelines, and those with
an underlying constitutional violation, in which the mandatory
Guidelines sentence was based in part on facts not admitted by the
defendant or found by a jury. 125 S. Ct. at 769 (vacating both
defendants' sentences while recognizing that Booker's sentence
violated the Sixth Amendment but Fanfan's, which was based solely
on the facts found by the jury, did not). The Court instructed
that we "must apply [Booker's] holdings -- both the Sixth Amendment
holding and our remedial interpretation of the Sentencing Act -- to
all cases on direct review." Id. Nevertheless, the Supreme Court
did not anticipate that all Booker errors would require remand and
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resentencing, in part "because, in cases not involving a Sixth
Amendment violation, whether resentencing is warranted or whether
it will instead be sufficient to review a sentence for
reasonableness may depend upon application of the harmless-error
doctrine." Id.
The defendant seizes on this sentence, arguing that it
implies that cases that do involve a Sixth Amendment violation
must be automatically remanded, without harmless error review. We
agree that the defendant's sentence involved a Sixth Amendment
violation within the meaning of Booker: neither the drug quantity,
the defendant's role in the offense, nor his responsibility for the
possession of a firearm by a co-conspirator were admitted by the
defendant or found by the jury. Nevertheless, we disagree that
harmless error review is inapplicable to such cases.
The language the defendant relies upon from Booker
anticipates the outcome of harmless error review in cases
challenging only the mandatory application of the Guidelines, but
it does not preclude harmless error review of cases involving an
underlying Sixth Amendment violation.5 The Supreme Court has made
5
The defendant's references to Sullivan v. Louisiana, 508 U.S.
275 (1993) are not on point. Sullivan addressed the
inapplicability of constitutional harmless error review to a jury
conviction made without an adequate reasonable doubt instruction.
A reviewing court cannot determine that the same verdict would have
been rendered had the proper instruction been given, without itself
violating the constitutional guarantee of a jury trial. Id. at
279. With Booker error, in contrast, we are dealing with the
decision process of a sentencing judge. It may well be possible to
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clear that not all errors of constitutional dimension require
automatic reversal. Chapman v. California, 386 U.S. 18, 22 (1967).
As we explained in Antonakopoulos, it is not certain that a
sentence would always be different under the advisory regime. 399
F.3d at 80. Indeed, sometimes the opposite may be clear, as when
a sentencing judge has explicitly stated that he would impose the
same sentence even if he had discretion to depart from the
Guidelines. See, e.g., United States v. Carpenter, -- F.3d --,
2005 WL 708335, at *5 (1st Cir. Mar. 29, 2005) (finding no plain
error where sentencing judge stated that, even if he had discretion
depart from a Guidelines sentence, he would not do so). Moreover,
even when it involves an underlying Sixth Amendment violation,
Booker error is not structural in nature. Id. at 80 n.11. Thus,
preserved Booker error does not require an automatic remand, but
must be reviewed for harmlessness. See Fed. R. Crim. P. 52(a)
(error not affecting substantial rights shall be disregarded).
The burden of proving that the preserved Booker error did
not affect the defendant's substantial rights lies with the
government. See Chapman, 386 U.S. at 24. The standard of proof,
however, depends on whether the error is conceived of as
constitutional. Compare id. ("[B]efore a federal constitutional
error can be held harmless, the court must be able to declare a
determine, on the basis of the judge's articulated rationale,
whether the same sentence would have been imposed under an advisory
Guidelines regime.
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belief that it was harmless beyond a reasonable doubt.") (emphasis
added), with Kotteakos v. United States, 328 U.S. 750, 764-65
(1946) (determining that error is not harmless if court "is left in
grave doubt"); see also O'Neal v. McAninch, 513 U.S. 432, 437-38
(1995) (comparing Chapman and Kotteakos standards). Since we have
described the Booker error as the mandatory application of the
Guidelines, and since under an advisory Guidelines regime a judge
may make findings of fact without falling afoul of the
Constitution,6 one might surmise that Booker error is not
constitutional error. This conclusion would be incorrect in the
instant case, where a mandatory Guidelines sentence was imposed on
the basis of judge-found facts.7 Mandatory application of the
Guidelines in such a case violates the defendant's Sixth Amendment
6
As the Second Circuit explained in United States v. Crosby, 397
F.3d 103, 109 n.6, (2d Cir. 2005), "[a]s a result of the Remedy
Opinion in Booker . . . the maximum lawful sentence is the
statutory maximum sentence, and because judicial fact-finding under
advisory guidelines cannot increase that lawful maximum, judicial
fact-finding now encounters no Sixth Amendment difficulties." See
Booker, 125 S. Ct. at 750 ("[W]hen a trial judge exercises his
discretion to select a specific sentence within a defined range,
the defendant has no right to a jury determination of the facts
that the judge deems relevant.") (Stevens, J.); id. at 764
("[W]ithout this provision . . . that makes the relevant sentencing
rules . . . mandatory and impose[s] binding requirement[s] on all
sentencing judges -- the [Guidelines] statute falls outside the
scope of Apprendi's requirement.") (Breyer, J.).
7
We express no opinion as to whether Booker error arising out of
the mandatory application of the Guidelines alone, without any
underlying Sixth Amendment violation, is constitutional in nature.
Cf. United States v. Haidley, 400 F.3d 642, 645 (8th Cir. 2005)
(declining to determine whether such error "was of constitutional
magnitude").
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rights. See Booker 125 S. Ct. at 756. Because the defendant was
"denied a federal constitutional right," Chapman 386 U.S. at 20,
the government has the burden of proving beyond a reasonable doubt
that the error did not affect the defendant's substantial rights.
Id. at 24; see also United States v. Pérez-Ruiz, 353 F.3d 1, 17
(1st Cir. 2003) (applying Chapman harmless error standard to
Apprendi violation). That is, we must be convinced that a lower
sentence would not have been imposed had the Guidelines been
advisory. This is an extremely difficult, but not impossible,
standard to meet. While the government, in light of the difficulty
of meeting its burden, has on occasion conceded to remand for
Booker error, see, e.g., United States v. Mercado Irizarry, -- F.3d
--, 2005 WL 825747, at *4 (1st Cir. Apr. 11, 2005), it has not done
so here.
2. Harmless error
The government contends that the sentencing judge's
belief that the Guidelines were mandatory did not contribute to the
defendant's sentence, but it has failed to meet its heavy burden of
proving this claim beyond a reasonable doubt. In support of its
position, the government refers to statements made by the
sentencing judge that suggest he was convinced of the factual basis
for the enhancements he applied. But even if, as the government
further alleges, each factor were supported by overwhelming
evidence, factual certainty alone would not be sufficient to show
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beyond a reasonable doubt that the judge, acting under an advisory
Guidelines system, would have applied the same sentence on the
basis of those factors. In the instant case, the government has
pointed to no statement or action of the sentencing judge that
would assure us that he would have imposed the same sentence in the
absence of mandatory Guidelines. To the contrary, our doubt on
this point is enhanced by the fact that, while the applicable
Guidelines constrained the sentencing judge to the upper margin of
sentences available under 21 U.S.C. § 841(b)(1)(C), the sentence he
chose was at the low end of that margin.
Finally, the government suggests that we may find the
Booker error harmless if we determine that the resulting sentence
is reasonable. See Booker, 125 S. Ct. at 767 ("The district
courts, while not bound by the Guidelines, must consult those
Guidelines and take them into account when sentencing. The courts
of appeals review sentencing decisions for unreasonableness.")
(internal citation omitted). This argument is without merit. The
reasonableness standard is to be used in reviewing sentences
imposed in compliance with Booker. See id. at 769 (suggesting that
if Booker error is harmless in cases not involving Sixth Amendment
violation, resulting sentence may only require reasonableness
review). The defendant's sentence did not comply with Booker.
Even if we determined that a 210 month sentence was reasonable
based on the facts considered at sentencing, we could not rule out
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the possibility that, under advisory Guidelines, the sentencing
judge would have imposed a lower reasonable sentence. Thus, we
hold that the government has failed to meet its burden of showing
that the Booker error was harmless.
3. Remedy
Two distinct options are available to remedy preserved
Booker error that has not been proven harmless. We can vacate the
sentence and remand for resentencing, or we can follow the lead of
the Second Circuit and remand for a determination of whether the
sentencing judge would have applied a different sentence under an
advisory Guidelines regime. See Crosby, 397 F.3d 116-18. Although
the Second Circuit deemed a Crosby remand "appropriate in order to
undertake a proper application of the plain error and harmless
error doctrines," id. at 117, it has only been applied in
unpreserved error cases, and appears to have been directed largely
at avoiding construing doubt about prejudice in the context of
plain error review against defendants, see United States v.
Williams, 399 F.3d 450, 457-61 (2d Cir. 2005).8 Nevertheless, the
Crosby remand does have the added benefits of avoiding the need to
8
We note that the Seventh Circuit has also developed a partial-
remand procedure for determining prejudice in cases of unpreserved
Booker error. See United States v. Paladino, 401 F.3d 471, 483-84
(7th Cir. 2005). It did not, however, apply that procedure to
remedy a finding that a preserved Booker error was not harmless,
opting instead to vacate the sentence and remand for resentencing.
See United States v. Schlifer, -- F.3d --, 2005 WL 774914, at *5
(7th Cir. Apr. 7, 2005).
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convene a resentencing hearing -- a much more administratively
taxing event than a sentencing judge's reevaluation on a Crosby
remand -- in cases where the sentencing judge determines that the
same sentence would have been imposed under advisory Guidelines.
Id. at 459. It also avoids, again in cases where the sentence
would not have changed, the quandary of whether aggravating or
mitigating facts that have arisen since the original sentencing can
be considered. Id.
Despite these advantages, we decline to engage in this
sort of limited remand for preserved Booker error when the
government has failed to prove harmlessness. We do not anticipate
that there will be so many such cases that reconvening sentencing
hearings will create a significant administrative burden. And,
while the problem of newly arisen sentencing factors is
significant, it will have to be addressed if a sentencing court
determines that a different sentence would have been imposed under
advisory Guidelines. Thus, we cannot be certain of avoiding the
problem with Crosby remands.
Given the limited benefit of Crosby remands in the
context of preserved error, we prefer to follow a more traditional
route. Although this is a case of first impression, roughly
analogous precedent exists in those cases where we have found that
the sentencing judge mistakenly believed that he was without
authority to depart from a Guidelines sentence. See United States
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v. Delgado-Reyes, 245 F.3d 20 (1st Cir. 2001); Mariano v. United
States, 983 F.2d 1150 (1st Cir. 1993). In both cases, despite the
possibility that the judge might have opted not to depart, we
vacated the sentence and remanded for resentencing. See Delgado-
Reyes, 245 F.3d at 23-24 (remanding because sentencing judge
"seemed inclined" to accept joint stipulation that lower range
applied); Mariano, 983 F.2d at 1150 (remanding where we were
"unable confidently to say . . . that the judge's error was
harmless"). We will do the same here.
Because we remand for resentencing under Booker, we will
not consider the defendant's remaining claim that the facts found
by the sentencing judge are insufficient to support the
enhancements applied. The new sentence will, however, be subject
to reasonableness review should it be challenged in the future.
Booker, 125 S. Ct. at 765.
III.
For the reasons stated above, we affirm the defendant's
conviction, but vacate his sentence. We remand to the district
court for resentencing in accordance with the Sentencing Reform Act
of 1984, Pub. L. 98-473, Title II, §§ 211-238, 98 Stat. 1987
(1984), as altered in Booker.
Affirmed, Vacated and Remanded.
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