United States v. Yeje-Cabrera

United States Court of Appeals
For the First Circuit

No. 03-1329

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL YEJE-CABRERA,

Defendant, Appellant.

No. 03-1510

UNITED STATES OF AMERICA,

Appellee,

v.

WILFREDO PÉREZ,

Defendant, Appellant.

Nos. 03-1874
03-1969

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

WILLIAM OLIVERO, a/k/a K, a/k/a ALEJANDRO,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
 [Hon. William G. Young, Chief U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch, Circuit Judge, and
Schwarzer,* Senior District Judge.

Joseph S. Oteri, with whom Kimberly Homan was on brief,
for Rafael Yeje-Cabrera.
Juan Ortiz-Lebrón for Wilfredo Pérez.
Lawrence D. Gerzog for William Olivero.
Joseph C. Wyderko, Attorney, Criminal Division, U.S.
Department of Justice, with whom Michael J. Sullivan, United States
Attorney, and Heidi E. Brieger, Assistant United States Attorney,
were on brief, for the United States of America.

November 2, 2005

*
Of the Northern District of California, sitting by
designation.

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 LYNCH, Circuit Judge. This case raises several issues of

importance, including whether a district court may punish the

prosecution by granting the defendant a lower than warranted

sentence after trial because the government had engaged in "fact

bargaining."

Three men, Rafael Yeje-Cabrera, Wilfredo Pérez, and

William Olivero, were convicted, after a twenty-day jury trial, of

conspiracy to possess with intent to distribute cocaine in

violation of 21 U.S.C. § 846. The conspiracy distributed over 260

kilograms of cocaine. Yeje-Cabrera was also convicted of attempted

possession with intent to distribute cocaine in violation of 21

U.S.C. § 841(a)(1) and of bribery of a federal agent in violation

of 18 U.S.C. § 201(b). These men, and others, distributed

truckloads full of cocaine obtained from two Mexican suppliers; the

drugs were driven from the Southwest to Massachusetts, Rhode

Island, and New York. Yeje-Cabrera, of Westport, Massachusetts,

was a principal in the operation and received a life sentence and

a fine of $16 million. Yeje-Cabrera was also ordered to forfeit

$5.2 million and two parcels of real property. Pérez helped to

distribute the cocaine and was an agent for Yeje-Cabrera. He was

sentenced to thirty years' imprisonment and fined $4 million.

Olivero, who lived in New York, collected the money, distributed

cocaine, and assisted with the shipments. By contrast with the

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thirty-year sentence for Pérez, Olivero was sentenced to 48 months'

imprisonment, followed by five years of supervised release.

Yeje-Cabrera attacks his conviction and the forfeiture

order. Pérez attacks his conviction through a premature

ineffective assistance of counsel claim. Olivero attacks his

conviction. All three defendants attack their sentences.

The government was also unhappy with the sentence imposed

on Olivero and has cross-appealed. It is the government's appeal

which raises the most significant issues in the case. In order to

sanction the government for what it considered to be impermissible

"fact bargaining," the district court declined to follow the

Sentencing Guidelines. This was error. The fact bargaining was

the government's willingness during earlier unsuccessful plea

negotiations to recommend a lower sentence when the facts known to

it at the time, or so the court found, justified a higher sentence.

The court declined to give a warranted firearms enhancement and did

give an unwarranted minimal-role reduction. The court also

concluded, mistakenly, that its role as a fact finder with respect

to drug quantity for sentencing purposes had been written out of

the Sentencing Guidelines by the decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000).

We affirm all three convictions and the sentences of

Yeje-Cabrera and Pérez. We vacate Olivero's sentence and remand it

to the district court for re-sentencing.

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 I. Statement of Facts and Proceedings

Yeje-Cabrera was a leader of a conspiracy to ship cocaine

from the Southwest to various states in the Northeast, where it was

sold. Pérez assisted with the distribution of cocaine. Olivero

assisted with the collection of money and the distribution and

shipping of cocaine.

Two seizures of tractor-trailers full of cocaine provide

the bookends for this case. In April of 2001, after using a camera

to conduct surveillance of a parking lot in New York City, agents

of the Drug Enforcement Administration (DEA) seized a tractor-

trailer containing over 300 kilograms of cocaine and over $400,000

in cash. The agents found a cellular telephone inside that

contained telephone numbers for Yeje-Cabrera and Olivero. DEA

agents then conducted surveillance of Yeje-Cabrera's home in

Westport, Massachusetts via a hidden camera in a birdhouse, but

Yeje-Cabrera discovered the camera and realized that he was under

surveillance. Some time later, the DEA agents applied for and

received permission to conduct electronic surveillance of Yeje-

Cabrera's phone line. This initial wiretap application was

followed by others seeking permission to conduct surveillance on

multiple phone lines belonging to Yeje-Cabrera and another suspect.

All were allowed.

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 In August 2001, the INS1 initiated removal proceedings in

Boston against Yeje-Cabrera and detained him. He reacted by

bribing an INS agent to terminate the proceedings and, in a series

of recorded conversations, offering to pay another bribe for

information regarding the drug investigation. Yeje-Cabrera was

released on his own recognizance and resumed his drug business.

Pérez and Olivero, with Yeje-Cabrera, continued to arrange for and

conduct the shipment of, payment for, and distribution of cocaine.

Meanwhile, DEA agents were monitoring Yeje-Cabrera's phone lines

and attempting to engage in other forms of surveillance. The

agents prepared to move in on the operation on December 8, 2001,

when Yeje-Cabrera and his associates were slated to receive a large

shipment of cocaine near New Bedford, Massachusetts. DEA agents

and state police were out in force that morning, searching for the

participants in the anticipated delivery. As it happened, the

drugs came to them: the ill-fated driver of the tractor-trailer,

instead of making his delivery, accidentally backed into a state

trooper's cruiser. Law enforcement agents seized the tractor-

trailer and discovered that it contained 260 kilograms of cocaine.

That seizure has the dubious distinction of being the largest drug

seizure in Massachusetts history.

1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as
amended at 6 U.S.C. § 291(a)).

-6-
 The conspiracy continued to receive and distribute

cocaine for a short while longer. Finally, on December 21, 2001,

officers arrested Yeje-Cabrera, Pérez, and several other

coconspirators. Olivero ultimately turned himself in.

All three defendants were charged in the December 20,

2001 indictment with conspiracy to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(ii), and 846. Yeje-Cabrera was also charged with two

additional crimes: attempted possession with intent to distribute

more than five kilograms of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii), and 846, and bribery of a federal

agent, in violation of 18 U.S.C. § 201(b). The indictment charged

that all defendants held certain real property, vehicles, and

currency which were subject to criminal forfeiture under 21 U.S.C.

§ 853.

Before trial, Yeje-Cabrera unsuccessfully moved to

suppress the evidence obtained as a result of the various wiretaps.

He argued that the affidavits submitted in support of the

electronic surveillance applications failed to satisfy the

"necessity" requirement of 18 U.S.C. § 2518(1)(c).

The jury convicted Yeje-Cabrera of all counts; it

returned a special verdict, finding that he was responsible for

more than 260 kilograms of cocaine on the conspiracy charge and

exactly 260 kilograms on the attempt charge, and a forfeiture

-7-
verdict. The jury convicted Pérez of conspiracy to distribute more

than five kilograms of cocaine. It also convicted Olivero of

conspiracy to distribute cocaine, though it did not attribute to

him a specific drug quantity. That failure by the jury to make a

specific finding led to some of the conviction and sentencing

issues we discuss later.

The district court sentenced Yeje-Cabrera to life

imprisonment. It also fined him and, during sentencing, stated

that it was "allow[ing] the government's recommendation for

forfeiture." The court sentenced Pérez to 360 months' imprisonment

and fined him $4 million. The court sentenced Olivero to 48 months

of incarceration.2

II. Discussion

A. Challenges to Conviction

1. Denial of Motion to Suppress Wiretap Evidence

2
After both Olivero and the government filed notices of
appeal, the district court issued an order purporting to vacate
Olivero's sentence in order to impose an even shorter sentence.
The court cited concerns about the appropriate drug quantity to
attribute to Olivero in light of Apprendi and other authorities,
and it stated that it was going to schedule a new sentencing
hearing. Upon being told by the government that it lacked
jurisdiction, the court vacated its attempt to vacate Olivero's
sentence. The court did proceed, however, to issue what was in
essence a sentencing memorandum pertaining not only to Olivero's
case but also to several other unrelated criminal cases, explaining
in more detail its reasons for the sentence it had imposed on
Olivero and its belief that the maximum constitutionally
permissible sentence for Olivero was 16 months. United States v.
Green, 346 F. Supp. 2d 259, 327, 332 (D. Mass. 2004).

-8-
 Yeje-Cabrera argues that the district court should have

excluded evidence derived from electronic surveillance of telephone

conversations because the wiretap applications failed to meet the

statutory requirements. If the intercepted conversations and all

evidence derived therefrom had been properly excluded, he argues,

his convictions would not stand.

Yeje-Cabrera bases his challenge on 18 U.S.C.

§ 2518(1)(c), which states that each wiretap application "shall

include . . . a full and complete statement as to whether or not

other investigative procedures have been tried and failed or why

they reasonably appear to be unlikely to succeed if tried or to be

too dangerous."

The parties disagree on the proper standard of review.

We have long applied a unitary standard of review in § 2518(1)(c)

cases: "When reviewing the government's showing of necessity, our

role 'is not to make a de novo determination of sufficiency as if

[we] were [the issuing judge], but to decide if the facts set forth

in the application were minimally adequate to support the

determination that was made." United States v. Santana, 342 F.3d

60, 65 (1st Cir. 2003) (quoting United States v. López, 300 F.3d

46, 53 (1st Cir. 2002) (alterations in original)).

Yeje-Cabrera urges us to adopt a bifurcated standard of

review: first, we should review de novo whether the applicant

provided to the issuing judge a "full and complete statement" as

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required by § 2518(1)(c); second, if and only if the first prong is

satisfied, we should review for abuse of discretion the issuing

judge's determination that, under the circumstances described,

electronic surveillance was necessary. One reason for this

approach, Yeje-Cabrera suggests, is that § 2518 imposes separate

duties on separate actors: the applicant has an "absolute" duty

under § 2518(1)(c), while the issuing judge has a "discretionary"

duty under § 2518(3)(c).3 Another reason for de novo review of the

"full and complete statement" requirement, he argues, is that it

would give effect to the necessity requirement: it would ensure

that necessity is actually present, that the issuing judge is able

to engage in an independent determination on that point, rather

than one subject to the affiant's manipulation of the facts, and

that meaningful appellate review is possible.

Though we recognize that other circuits have adopted

bifurcated standards similar to that proposed by Yeje-Cabrera, see,

e.g., United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 n.1

(10th Cir. 2002); United States v. Blackmon, 273 F.3d 1204, 1207

(9th Cir. 2001), this panel is bound by circuit precedent.

3
Section 2518(3)(c) provides that upon receiving an
application as described in § 2518(1), "the judge may enter an ex
parte order" authorizing the wiretap "if the judge determines on
the basis of the facts submitted by the applicant that . . . normal
investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too
dangerous."

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 Moreover, we see no reason to depart from the unitary

standard. First, Yeje-Cabrera's approach artificially separates

two concepts that are a unified whole in the statute: "full and

complete statement," and "necessity." One might ask: of what must

the applicant provide a "full and complete statement"? The answer

is: of "whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be unlikely to

succeed if tried or to be too dangerous." § 2518(1)(c). This is

one requirement, not two: a full and complete statement regarding

necessity, that is, circumstances in which a wiretap, though

disfavored as an investigative technique, is justified. See United

States v. Kahn, 415 U.S. 143, 153 n.12 (1974) (the necessity

requirement is "designed to assure that wiretapping is not resorted

to in situations where traditional investigative techniques would

suffice to expose the crime"). We see no basis for splitting in

two what is properly a single inquiry.

The determination of necessity is properly committed to

the issuing judge in the first instance, and we will uphold the

sufficiency of the affidavit wherever "the issuing court could have

reasonably concluded that normal investigatory procedures

reasonably appeared to be unlikely to succeed." López, 300 F.3d at

53 (quoting United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.

1989)). It is simply "not our province to engage in de novo review

of an application." United States v. Bynum, 763 F.2d 474, 476 (1st

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Cir. 1985) (quoting United States v. Smith, 726 F.2d 852, 864 (1st

Cir. 1984)); see also United States v. Rivera-Rosario, 300 F.3d 1,

19 n.23 (1st Cir. 2002).

We also note that the issuing judge has the power to

"require the applicant to furnish additional testimony or

documentary evidence in support of the application," § 2518(2), if

such information is necessary. Of course, officers may not

deliberately omit material information that, if known to the

issuing judge, would prevent a finding of necessity. Should the

defendant come to believe that the government omitted material

information that would have prevented a finding of necessity, he is

free to seek a hearing under Franks v. Delaware, 438 U.S. 154

(1978). See, e.g., United States v. Stewart, 337 F.3d 103, 105

(1st Cir. 2003) (district court held Franks hearing with

government's consent where search warrant affidavits misleadingly

omitted multiple pieces of information casting doubt on credibility

of informants); id. at 105-06 (not error to deny suppression of

resulting evidence where improperly omitted information was

immaterial to overall determination of probable cause); id. at 107

n.2 ("An evidentiary hearing is required only if the defendant is

able to show that alleged misstatements or omissions are material

to the probable cause determination."). A Franks hearing, not de

novo review in this court, is the proper route for addressing that

concern. Cf. Rivera-Rosario, 300 F.3d at 20 ("Material omissions

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in a government's application are . . . sufficient to constitute

the basis for a Franks evidentiary hearing." (citation omitted)).

Yeje-Cabrera, however, did not pursue this option.

Applying our unitary standard of review, we inquire

whether the affidavits satisfied the statutory requirement. After

reviewing the sealed affidavits, we hold that they provided a

sufficient basis for the issuing judge to authorize the wiretap.

Without revealing any of the information for which it was

appropriate to seal the affidavits, we note that the initial

affidavit supplies a detailed overview of the investigation to

date, concrete reasons why a wiretap was necessary, and thorough

explanations of how traditional investigative techniques were

proving, or were expected to prove, unlikely to succeed or

dangerous. These representations were supported.

The initial affidavit could reasonably be thought to be

more than adequate. After receiving authorization to conduct the

first wiretap, the officers applied for and received authorization

to conduct others and to extend some beyond the initial time

period. As Yeje-Cabrera points out, the subsequent affidavits do

overlap considerably with the initial affidavit and with each

other, sometimes containing identical wording of some points. The

last affidavit, seeking authorization to wiretap a telephone line

over which officers expected to hear "vital information" on a large

cocaine delivery expected to occur the next day, incorporates by

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reference the statement of necessity set out in a prior (attached)

affidavit, instead of setting out a fresh one. Despite Yeje-

Cabrera's characterization of the affidavits as consisting largely

of "boilerplate," all the affidavits did contain much that was

concrete and pertained to this specific investigation. See López,

300 F.3d at 53-54 (rejecting defendant's argument that application

was "mere boilerplate" where affidavit contained specific details

about the investigation and about attempts to use less invasive

surveillance techniques). We have reviewed these affidavits and

find no flaws in the issuing court's determination that they were

sufficient.

Yeje-Cabrera raises several objections to the conclusion

that there was no abuse of discretion by the issuing judge in

determining that the affidavits were sufficient. His primary

argument is that a statement which appears in all of the affidavits

constitutes an admission that the affiant "expressly ignored the

'full and complete statement' requirement." The officer applying

for the wiretap authorization stated near the beginning of each

affidavit:

Since this Affidavit is being submitted for
the limited purpose of securing an order
authorizing the interception of wire
communications, I have not included details of
every aspect of this investigation to date.
Facts not set forth herein are not being
relied on in reaching my conclusion that an
order should be issued.

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Yeje-Cabrera argues that 18 U.S.C. § 2518(1)(c) requires the

application to describe "all prior investigative steps undertaken."

The argument fundamentally misreads 18 U.S.C.

§ 2518(1)(c). The requirement of a full and complete statement

cannot possibly mean that every single detail, even if relevant to

the wiretap, must be included. The plain language of § 2518(1)(c)

only requires a full and complete statement "as to" the crucial

issue: "whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be unlikely to

succeed if tried." 18 U.S.C. § 2518(1)(c). Many aspects of an

investigation, especially in a large, complex case like this one,

will not be relevant to the question of whether a particular

wiretap is necessary. And even if there is some relevance, the

officer need not detail every single fact, so long as sufficient

facts are described as to the crucial issue and material contrary

facts are not omitted. If there are relevant and material

omissions, the issuing judge may deny the application or seek

additional information, or the defendant may seek a Franks hearing.

Second, Yeje-Cabrera argues that the government did not

do enough to exhaust traditional investigative methods before

resorting to the wiretap. We have previously made clear, though,

that "the government need not demonstrate that it exhausted all

investigative procedures." Santana, 342 F.3d at 65 (citing López,

300 F.3d at 52). The wiretap application simply "must 'demonstrate

-15-
that the government has made a reasonable, good faith effort to run

the gamut of normal investigative procedures before resorting to

means so intrusive as electronic interception of telephone calls.'"

Id. (quoting United States v. London, 66 F.3d 1227, 1237 (1st Cir.

1995)); see also Ashley, 876 F.2d at 1072 ("[T]he government is not

required to show that other methods have been wholly unsuccessful.

Nor is the government forced to run outlandish risks or to exhaust

every conceivable alternative before requesting authorization for

electronic surveillance." (citations omitted)). We conclude that

the district court did not err in refusing to suppress the evidence

obtained from the wiretaps.

2. Claim of Error in District Court Inquiry of Jurors

Yeje-Cabrera raises a claim of jury taint arising from a

note that a juror sent to the judge. We review for abuse of

discretion the claim that the trial court failed to conduct an

appropriate inquiry into allegations of jury taint. United States

v. Paniagua-Ramos, 251 F.3d 242, 249 (1st Cir. 2001).

At the commencement of the trial, the district court

instructed the jurors that they must not discuss the case with each

other or with anyone else during the trial, that it was the

government's burden to prove guilt beyond a reasonable doubt, and

that the defendants were not obliged to testify or present any

evidence. For the first ten days of trial, there was no inkling of

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anything awry with any juror. Then, during the eleventh day of

trial, a juror sent a note to the judge. The note said:

WHY [ARE] THE DEFENDANTS
NOT GOING TO BE
CROSS-EXAMINED?

4 DEFENDANTS SHOULD
BE CROSS-EXAMINED!

THIS SHOULD BE
DONE IN THIS CASE!

The court shared this note with counsel. Defense counsel

urged the court to identify the juror, interview her and the other

jurors individually to ascertain whether she had spoken with them,

then excuse her. The court declined, opting instead to issue a

strongly worded curative instruction on the burden of proof and on

jurors' duty to refrain from discussion. The court instructed the

members of the jury that if any of them could not follow these

instructions, he or she was to speak with the clerk. It polled the

jury as a group, asking for a show of hands on whether jurors had

discussed the case among themselves. No juror admitted doing so.

That night and the next morning, the juror who had sent

the note to the judge communicated with the court and its clerk

multiple times. She expressed that she was upset over the judge's

handling of the note and that she still had opinions about the case

that were consistent with her note. By the time trial was to

resume on the twelfth day, the court had dismissed this juror and

so informed counsel. Defense counsel again requested that the

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court interview the remaining jurors individually, but the court

declined, stating that the jurors had already satisfactorily

responded to the prior day's group inquiry, and that since that

time they could have had no contact with the note-sending juror.

Yeje-Cabrera's essential claim is that the juror who sent

the note, although removed from the jury the next day, likely had

expressed her strongly felt views to the other jurors and thus

tainted the jury's deliberations. The court's response to the

note, Yeje-Cabrera argues, was inadequate. In particular, he

points to "peer pressure," and to the fact that the court had just

delivered a "stinging rebuke" to the jury, as factors rendering the

show of hands unreliable. Even though the jurors unanimously

indicated that they had followed the court's instructions not to

discuss the case among themselves, he argues, the court did not do

enough: under these circumstances, a juror who had not followed

instructions could not be expected to raise a hand. He argues that

the court should have individually interviewed the juror who sent

the note and all the other members of the jury to ascertain whether

they had followed instructions. Yeje-Cabrera further argues that

the district court's method of handling the problem was so

deficient as to require that the conviction be vacated: he claims

that the district court could not "do effective damage control,"

and that this court cannot engage in meaningful appellate review,

because the district court's failure to conduct individualized

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inquiries deprived it and us of essential information. Such

hyperbole does not win the day.

This was a difficult situation and the trial judge acted

well within the range of permissible options. Trial judges have a

wide latitude in how to handle a claim of potential juror

misconduct. See Paniagua-Ramos, 251 F.3d at 250 ("[W]hile a trial

court has an unflagging duty adequately to probe a nonfrivolous

claim of jury taint, the court has wide discretion to determine the

scope of the resulting inquiry and the mode and manner in which it

will be conducted." (citations omitted)).

Here the claim of taint is not about the juror who sent

the note; she was dismissed after she said she could not continue

in the case. The question is whether she tainted the others.

Yeje-Cabrera draws the inference -- from the emphatic nature of the

juror's note to the judge -- that the juror had disseminated her

views to the other jurors, in violation of instructions. Moreover,

he argues, her expressed views might have overridden in the other

jurors' minds the court's strong curative instruction about the

government's burden of proof.

While the posited scenario is possible, we think that

such inferences are not reasonable. During the show of hands, the

juror who sent the note and the other jurors denied there had been

discussions. We acknowledge that asking jurors en masse, before

their peers, whether they have failed to comply with the court's

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instructions may tend to discourage an honest affirmative response.

But the court also invited individual jurors to contact it

afterwards, and none, other than the juror who sent the note, did

so.

Even if the one juror had communicated her views to the

other jurors, there is also no reason to think those jurors were

dissuaded from following the instructions of the judge, much less

that this somehow led jurors to penalize the defendants for their

decision not to take the stand.

There was no abuse of discretion. Cf. United States v.

Richman, 600 F.2d 286, 295-96 (1st Cir. 1979) (where court

satisfied itself that other jurors had not overheard one juror's

potentially improper remark and had not been discussing case among

themselves, refusal to conduct individualized inquiry of remaining

jurors was within court's discretion).

3. Ineffective Assistance of Counsel

At the request of his client, counsel for Pérez has

presented on this direct appeal a claim for ineffective assistance

of counsel. His counsel has correctly advised Pérez that this

court will not entertain an ineffective assistance claim on direct

appeal, absent a sufficiently developed evidentiary record. United

States v. Woods, 210 F.3d 70, 74 (1st Cir. 2000). The record

evidence here is not sufficiently developed to enable either

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counsel or the court to appraise the merits of Pérez's ineffective

assistance claim.

4. Drug Quantity

Olivero argues that since the jury did not attribute a

specific drug quantity to him, his conviction must be vacated. His

claim results from the jury verdict form employed here:

On the charge of conspiracy to possess cocaine
with intent to distribute, we find
a. Rafael Yeje-Cabrera
______not guilty
___T__guilty of conspiracy involving
greater than 260 K's of cocaine
b. Wilfredo Perez
______not guilty
___T__guilty of conspiracy involving
greater than 5 K's of cocaine
. . .
d. William Olivero
______not guilty
___T__guilty of conspiracy involving
______ of cocaine

The net result was that the jury did not find a specific drug

quantity as to Olivero but did find he was guilty of conspiracy to

distribute cocaine. The jury was not asked to determine the

quantity of drugs involved in the conspiracy as a whole. The court

did, however, instruct the jury that the government had to prove

beyond a reasonable doubt that each defendant joined "this

conspiracy" -- the one charged in the indictment, a "wholesale"

rather than "retail" conspiracy to distribute cocaine. The

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indictment had alleged conspiracy to possess with intent to

distribute "more than 5 kilograms of cocaine."4

From this, Olivero's counsel argues that unless the jury

has found a specific quantity of drugs, a defendant cannot be

guilty of conspiracy. He bases this argument on United States v.

Gonzalez, 420 F.3d 111 (2d Cir. 2005). He attributes to the case

a holding that drug quantity must always be pled and proved beyond

a reasonable doubt to a jury before there can be a conspiracy

conviction. In the absence of a jury question asking the jurors to

find the quantity of drugs involved in the conspiracy itself, he

argues, that standard has not been met.

Olivero confuses issues of criminal liability with issues

of sentence. He overreads Gonzalez, which simply holds that a

defendant charged with an aggravated drug conspiracy under 21

U.S.C. § 841(b)(1)(A), who does not admit but rather disputes the

4
The government objected to the district court's plan to ask
the jury to determine the quantity of cocaine as to which each
individual defendant had conspired, instead of the quantity of
cocaine involved in the conspiracy as a whole. The prosecution
asked that the jury be required to find only the facts charged in
the indictment, that is, that each defendant had participated in
the conspiracy, and that the conspiracy as a whole sought to
possess with intent to distribute more than five kilograms of
cocaine. The prosecution renewed its objection after the court
instructed the jury. The defense attorneys did not object on the
drug-quantity point, and Yeje-Cabrera's attorney said he preferred
the court's proposition. Olivero's attorney made some requests
about jury instructions, but none pertaining to the drug-quantity
issue. After the jury was instructed, Olivero's attorney objected
to the court's telling the jury that drug quantity was a sentencing
issue, saying he would have preferred for the court to say that the
amount went to "other reasons or other legal reasons."

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requisite drug quantity, could not be held to a guilty plea to that

offense. Id. at 115. Rather, such a defendant's plea "at best

supports a conviction on a lesser, unquantified drug charge, whose

sentencing range is prescribed by § 841(b)(1)(C)." Id.

Treating 21 U.S.C. § 841(b)(1)(C) as establishing a

default statutory maximum sentence, the maximum is still 20 years.5

This is so no matter how small the amount of the cocaine which was

the subject of the conspiracy. This court has previously affirmed

the conviction but remanded for resentencing no higher than the

default statutory maximum of 20 years on similar facts. See United

States v. Pérez-Ruiz, 353 F.3d 1 (1st Cir. 2003), cert denied, 541

U.S. 1005 (2004) ("Pérez-Ruiz I") (defendant was charged with

conspiracy to distribute specific drug quantities, but jury was not

instructed that it had to find specific amounts in order to convict

and there were no special verdict findings). "No specific drug

quantity needs to be proven for a jury to convict a defendant of

conspiracy to possess with intent to distribute. It is therefore

not erroneous per se to allow a jury to find that a defendant is

guilty of the crime charged but responsible for a lesser quantity

of drugs than specified in the indictment." United States v.

Gómez-Rosario, 418 F.3d 90, 104 (1st Cir. 2005) (citations

omitted); see also id. at 103-05 (special verdict form had one

5
The maximum is higher if additional facts are present. See
21 U.S.C. § 841(b)(1)(C).

-23-
blank for filling in guilty/not guilty and other blanks for filling

in defendant's responsibility for particular drug quantity, and

jury was instructed to convict only upon finding that the

"agreement specified in the indictment, and not some other

agreement . . . existed"). There is no basis here for reversing

Olivero's conviction.

B. Forfeiture Order: Violation of Rule 32.2(b)(3)

Yeje-Cabrera asks on appeal that the final order

forfeiting $5.2 million and two parcels of land be reversed because

it was entered after judgment was entered instead of being

incorporated into the judgment as required by Fed. R. Crim. P.

32.2(b)(3). The Rule provides: "At sentencing -- or at any time

before sentencing if the defendant consents -- the order of

forfeiture becomes final as to the defendant and must be made a

part of the sentence and be included in the judgment." Fed. R.

Crim. P. 32.2(b)(3) (emphases added).

We reject the government's position that Rule 32.2(b)(3)

was not violated because the court told the defendant at sentencing

that it was "allow[ing]" the preliminary order of forfeiture to

become final. Cf. United States v. Melendez-Santana, 353 F.3d 93,

100 (1st Cir. 2003) (stating that "where the conditions of

supervised release announced at the sentencing hearing conflict in

a material way with the conditions of supervised release in the

written sentencing order, the oral conditions control"), overruled

-24-
in part on other grounds by United States v. Padilla, 415 F.3d 211,

215 (1st Cir. 2005) (en banc). The oral sentencing does not trump

Rule 32.2(b)(3). See United States v. Pease, 331 F.3d 809, 814-15

(11th Cir. 2003) (forfeiture, to be valid, must be included in the

judgment); cf. United States v. Petrie, 302 F.3d 1280, 1284-85

(11th Cir. 2002) (where forfeiture was not mentioned at sentencing

and only vaguely mentioned in judgment, district court lacked

jurisdiction to enter preliminary forfeiture order six months after

sentencing); but see United States v. Loe, 248 F.3d 449, 464 (5th

Cir. 2001) (where forfeiture was mentioned at oral sentencing but

not in written judgment, "the oral ruling prevails" over

conflicting written order, so that "[t]he court's oral

pronouncement on forfeiture, which it issued at the sentencing

hearing, consequently remains effective in the face of a contrary

written judgment"). There was a clear violation of the "must be

included in the judgment" portion of the Rule.

The appropriate remedy for violation of the Rule depends

on context. One very serious situation would be if the violation

bespoke a lack of notice and opportunity for the defendant and

third parties to object to a proposed forfeiture. Cf. Pease, 331

F.3d at 816 n.18 (oral sentencing did not include forfeiture);

Petrie, 302 F.3d at 1284 (forfeiture was not mentioned at

sentencing hearing, written judgment merely stated that defendant

was "subject to forfeiture as cited" in one count of the

-25-
indictment, and preliminary forfeiture order was not entered until

six months after sentencing).

That is not the situation here. The forfeiture claim was

contained in the indictment, and the jury returned a special

verdict finding that Yeje-Cabrera had derived the property

"directly or indirectly, as a result of the conspiracy to possess

cocaine with intent to distribute." The presentence report

mentions the forfeiture allegation in the indictment and states

that the jury "returned a verdict of guilty on all counts." The

"Sentencing Options" section of the presentence report does not,

however, mention forfeiture. Two months after the verdict, the

government moved for a preliminary order of forfeiture; the motion

was granted on February 24, 2003. Two days later, at sentencing,

the district court stated that it was "allow[ing] the government's

recommendation for forfeiture." When the court said this, it must

have been referring to a recommendation of a final order of

forfeiture, since the preliminary order had already issued.

For reasons which are unclear, no order of forfeiture was

set forth in the judgment entered on March 3, or in the amended

judgment entered on May 9, 2003. On August 14, 2003, the

government moved for a final order of forfeiture. The government

apparently did not realize that the "must be included in the

judgment" requirement of Rule 32.2 had not been met, as it did not

move to correct the judgment under Rule 36. See Fed. R. Crim. P.

-26-
36 ("After giving any notice it considers appropriate, the court

may at any time correct a clerical error in a judgment, order, or

other part of the record, or correct an error in the record arising

from oversight or omission."). On September 19, 2003, the court

entered a final order of forfeiture.

Importantly, it appears that Yeje-Cabrera never once

opposed the merits of the proposed forfeiture. The government so

represents, and Yeje-Cabrera does not represent to the contrary.

Essentially, Yeje-Cabrera argues now that because there was a

violation of Rule 32.2, he is entitled to reversal of the

forfeiture order, which he had never opposed on the merits. We

disagree.6

There may be occasions when violations of Rules warrant

a remedy of reversal. But the portion of Rule 32.2 which was

violated here is largely a housekeeping rule and does not itself go

to any fundamental rights of defendants.

One of the primary purposes of Rule 32.2, as its history

shows, is to allow for the entry of a preliminary order of

forfeiture. Before the 1996 Amendments, the predecessor Rule

32(d)(2) did not explicitly provide for such a preliminary

6
We bypass the government's argument that by failing to
oppose entry of the post-judgment final order of forfeiture, at
best Yeje-Cabrera is entitled to plain error review. The outcome
would be the same here regardless of the standard of review. We do
note, however, that if either party had called this matter to the
attention of the court, we are sure the court would have remedied
the problem under Fed. R. Crim. P. 36.

-27-
forfeiture procedure. In 1996, Rule 32(d)(2) was amended to

provide for the entry of a preliminary order of forfeiture after

the forfeiture verdict and after "providing notice to the defendant

and a reasonable opportunity to be heard." The amendment added

that "[a]t sentencing, a final order of forfeiture shall be made

part of the sentence and included in the judgment." This marks the

first appearance of language similar to that relied upon by Yeje-

Cabrera.

The Advisory Committee Notes to the 1996 Amendments

illustrate that the drafters were primarily concerned with enabling

the government to obtain a preliminary order of forfeiture. The

Notes cite three problems the new procedure avoids: delay in the

government's locating and preserving forfeited assets, delay in

third parties' ability to assert interests in the property, and the

need to resort to restraining orders to maintain the status quo.

See Fed. R. Crim. P. 32 advisory committee's notes (1996

amendments). The drafters do evince concern with protecting the

defendant's interests, but do so by highlighting the defendant's

right to notice and an opportunity to be heard, rather than by

emphasizing the written judgment requirement. See id.

Rule 32.2 serves other efficiency interests as well, in

particular, preserving the resources of the judicial system and of

potentially interested third parties. The Advisory Committee Notes

on Subdivision (b) of Rule 32.2 are concerned almost entirely with

-28-
improving the procedure by which the relative ownership interests

of the defendant and of third parties are determined. See Fed. R.

Crim. P. 32.2 advisory committee's notes (2000 amendments).

Tellingly, the Advisory Committee Notes do not focus on the written

judgment requirement at all. Instead, they focus on explaining how

the Rule avoids wasteful litigation. The Notes discuss how the

coexistence of former Rule 31(e) with 21 U.S.C. § 853(n) and 18

U.S.C. § 1963(l) caused duplicative proceedings to determine

relative ownership interests in property subject to forfeiture, and

they explain how the new procedure avoids that problem.

To be sure, Rule 32.2 also does serve interests of the

defendant. In particular, the Rule ensures that all the penalties

imposed on the defendant occur as part of a "package," so that

forfeiture is not imposed above and beyond a sentence that the

court had already determined to be adequate. The Eleventh

Circuit's observation in Pease puts the point well:

[F]orfeiture is part of the defendant's
sentencing package for an obvious reason. The
magnitude of the forfeiture may influence how
the court treats the other parts of the
package. For example, if forfeiture is
sizeable, the court may impose a fine at the
bottom of the Sentencing Guidelines' range or,
if the forfeiture would render the defendant
impecunious, perhaps no fine at all.

Pease, 331 F.3d at 816 (discussing Rule 32, the predecessor to Rule

32.2, which in this respect was similar to the current Rule). On

the facts of this case, mere failure to comply with Rule

-29-
32.2(b)(3)'s written judgment requirement does not harm this

interest of the defendant. The district court included the

forfeiture at the time it orally sentenced; the purpose of avoiding

unduly large sentence/forfeiture "packages" was served here.

This court addressed the mirror image of our problem in

United States v. Ferrario-Pozzi, 368 F.3d 5 (1st Cir. 2004), where

the final order of judgment did include the written order of

forfeiture, but defendant argued it had not been included in the

oral pronouncement of the sentence. In fact, the defendant had

agreed at sentencing "that he was not contesting forfeiture itself,

but simply the amount over two million dollars," and he requested

that this issue be resolved at a later hearing. Id. at 7.

Ferrario-Pozzi pointed out that cases where the defendant did not

receive adequate notice that a final order of forfeiture would be

entered pose different concerns than cases where the defendant knew

of this fact all along. See id. at 9. The efficiency of the court

system's operations may have been hurt in this case, but Yeje-

Cabrera was not.

As the Fifth Circuit held in Loe, 248 F.3d at 464, we

find nothing objectionable about employing a later nunc pro tunc

amendment to cure a mere failure of the judgment to describe a

final order of forfeiture as required by Rule 32.2(b)(3). This is

provided, of course, that the judge has properly addressed the

forfeiture issue previously. See id. (trial judge had included

-30-
forfeiture at oral pronouncement of sentencing and had issued a

preliminary written order of forfeiture); United States v. Hatcher,

323 F.3d 666, 673-74 (8th Cir. 2003) (deeming omission of the

forfeiture from both the sentencing and the judgment to be mere

clerical error, where the district court had earlier entered a

preliminary forfeiture order). Accordingly we order amendment of

the judgment nunc pro tunc to include the final order of

forfeiture.

C. Sentencing Issues

1. Defendants' Claims

a. Apprendi/Booker -- All Defendants

All three defendants challenge their sentences on the

basis of a misunderstanding of Apprendi v. New Jersey, 530 U.S. 466

(2000), and Blakely v. Washington, 542 U.S. 296 (2004). Each

argues that it was error for the district court to impose a

sentence on the basis of facts found by the court by a

preponderance of the evidence, but not found by the jury beyond a

reasonable doubt. In Yeje-Cabrera's case, the alleged flaw was a

sentence enhancement under U.S. Sentencing Guidelines Manual

(U.S.S.G.) § 3B1.1 based on the court's finding that he was "the

organizer, manager and leader of a large-scale drug organization

including more than five individuals." In Pérez's case, the jury

stated in its special verdict form that Pérez was responsible for

five kilograms of cocaine, but the district court found that Pérez

-31-
was responsible for a drug quantity between 15 and 50 kilograms.

It also imposed a sentence enhancement under U.S.S.G. § 4B1.1,

based on its finding that Pérez was a career offender.7 In

Olivero's case, the claimed error arises from the district court's

finding that Olivero was responsible for "at least 499 grams" of

cocaine, when the jury verdict had attributed no particular drug

quantity to Olivero.

These objections -- that the judge, not the jury, found

certain facts -- misapprehend the law as it was eventually

articulated in United States v. Booker, 125 S. Ct. 738 (2005). As

we explained in United States v. Antonakopoulos, 399 F.3d 68 (1st

Cir. 2005), the Booker error "is not that a judge (by a

7
It is not clear whether counsel for Pérez is also asserting
that the base offense level of 37 was somehow inaccurate. If so,
the record refutes the argument easily. The court found that Pérez
was a "career offender, having had two prior convictions of either
a crime of violence or [a] controlled substance violation." See
U.S.S.G. § 4B1.1(a). Under U.S.S.G. § 4B1.1(b), the offense level
provided by the career offender subsection or the otherwise
applicable offense level, whichever is greater, must be applied.
The table in that subsection provides that if the statutory maximum
for the offense is life imprisonment, then the offense level is 37.
Here, the statutory maximum was life, as provided by 21 U.S.C.
§ 846 (conspiracy to commit an offense is punished the same as the
offense itself) and § 841(b)(1)(A)(ii) (distribution of five
kilograms or more of cocaine subjects the offender to a maximum
penalty of life in prison). Therefore, the offense level was 37
under the career offender table, and this was greater than the
otherwise applicable offense level of 34, so it was the correct
level to apply under the career offender Guideline. Under U.S.S.G.
§ 4B1.1(b), "[a] career offender's criminal history category in
every case under this subsection shall be Category VI." With a
total offense level of 37 and a criminal history of Category VI,
the Guidelines range was thirty years to life in prison.

-32-
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." Id. at

75.

For this reason, we reject Olivero's argument that

because the jury did not attribute a specific drug quantity to him,

his sentence must be vacated.

Olivero argues in particular that, because there was no

specific drug quantity found by the jury, the "statutory maximum"

for him was that based on a Guidelines offense level of 12,

pursuant to U.S.S.G. § 2D1.1(c)(14) (providing for a base offense

level of 12 where the drug quantity is less than 25 grams of

cocaine). With a base offense level of 12 and a criminal history

category of I, the high end of the Guidelines range would have been

16 months. See United States v. Green, 346 F. Supp. 2d 259, 327

(D. Mass. 2004). But the actual statutory maximum here was 20

years. The district court's attribution to Olivero of a specific

quantity of cocaine ("at least 499 grams") no more invalidates his

sentence than it does his conviction. There was a period between

Blakely and Booker when the district courts were forced to predict

and improvise. Some courts, as the court did here, predicted

wrongly that Sixth Amendment concerns required as a remedy that

certain issues (for instance, drug quantity) be decided by a jury,

-33-
not a judge. It is now well settled that this was wrong; the

remedy was to make the Guidelines non-mandatory. See Booker, 125

S. Ct. at 756-57; Antonakopoulos, 399 F.3d at 75.

Since Booker we have made it clear that the district

courts may make drug quantity determinations for sentencing

purposes:

Under the 5-4 constitutional ruling in Booker,
judge-made enhancements under the guidelines
that result in a sentence greater than the
sentence that could be imposed based solely on
the facts found by the jury do amount to Sixth
Amendment violations if the guidelines are
treated as mandatory; but under the companion
5-4 remedial ruling in Booker, this problem is
washed out by treating the guidelines as
advisory. A defendant sentenced under the
mandatory regime may be entitled to
resentencing under the advisory one . . . but
Booker both created and cured the
constitutional error at the same time.

United States v. Pérez-Ruiz, 421 F.3d 11, 14-15 (1st Cir. 2005)

("Pérez-Ruiz II"). We rejected the defendant's claim that "the

district judge violated the Sixth Amendment by himself making the

determinations as to drug quantity and other enhancements." Id. at

14; see also United States v. Sanchez-Berrios, 424 F.3d 65, 80 (1st

Cir. 2005) ("[A]n unadorned claim that the judge -- and not the

jury -- found sentencing facts, even if true, does not warrant

resentencing." (citing United States v. Martins, 413 F.3d 139, 152

(1st Cir. 2005))). There was no reversible error in the district

-34-
court's attribution to Olivero of at least 25 grams of cocaine.8

That is a separate matter than the government's appeal from the

sentence, which we address below.

No defendant makes a plausible claim for a remand under

Booker and Antonakopoulos. Yeje-Cabrera and Olivero never filed

briefs raising a Booker/Antonakopoulos argument, so they have

waived any claim they might have had under those decisions. See

United States v. Vega Molina, 407 F.3d 511, 534 n.7 (1st Cir.

2005).

Pérez did file a supplemental brief seeking resentencing

under Booker, but he has not shown why resentencing is justified in

his case. He concedes that plain error review applies. We thus

apply the standard that we articulated in Antonakopoulos. See

Antonakopoulos, 399 F.3d at 77.

8
Olivero also challenges his sentence by claiming that the
district court abused its discretion when it imposed an upward
departure of seven months. Under U.S.S.G. § 5K2.0, the sentencing
court may depart where there are aggravating or mitigating
circumstances "of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines." U.S.S.G. § 5K2.0(a)(1) (Policy Statement). Olivero
argues that it was error to depart on the basis of his role in the
offense, because it was already adequately addressed under the
Guidelines. It is clear, though, that the district court not only
could have, but would have, departed on the sole basis of the other
ground it cited: the extraordinary extent and danger of the
conspiracy. Contrary to Olivero's assertion that it was just a
"run of the mill" conspiracy, the evidence at trial showed that
this conspiracy involved a multistate network of players,
sophisticated tactics, and record-setting quantities of cocaine.

-35-
 Pérez has not met his burden of showing a "reasonable

probability that the district court would impose a different

sentence more favorable to the defendant under the new 'advisory

Guidelines' Booker regime." Id. at 75. Pérez points to nothing in

the record that would suggest that the district court would have

sentenced him more leniently had it been free to do so. Instead,

he asks this court to look outside the record -- for instance, he

claims that the trial judge made public statements condemning the

Guidelines in general as too harsh -- and he ultimately disclaims

any attempt to make the requisite showing under Antonakopoulos,

admitting that he "is not claiming, per se, that the sentencing

court might have given him a more favorable sentence had [it] not

been for the guidelines."

In fact, the court stated:

There's no reason to depart downward in your
case. You are a career offender. You've had
all the chances the law allows. I have given
you the bottom of the guidelines. Not that
that amounts to much when it comes out to
being a 30 year sentence.
This is the sentence for dealing drugs in
our society. It is the sentence decreed by
the people's representatives sitting in
congress. It is a fair and just sentence.

On these facts, a remand for resentencing is not warranted. See

Sanchez-Berrios, 424 F.3d at 80 ("It is not enough for a defendant

merely to argue that his sentence might have been different had the

guidelines been advisory at the time of sentencing."); id. (stating

-36-
that the fact that defendant was sentenced at the bottom of the

Guidelines range, "standing alone, is manifestly insufficient to

satisfy the third element of the plain error test").

b. The fine -- Pérez

Pérez challenges his $4 million fine on the ground that

he is indigent and has no "potential ability" to pay the fine in

the future, and so it was error for the court to impose it. Pérez

did not challenge the fine in the district court, so we review for

plain error. See United States v. Peppe, 80 F.3d 19, 22 (1st Cir.

1996).

Pérez never submitted financial information before

sentencing.9 At sentencing, the district court stated:

The Court imposes upon you no fine due to
your inability to pay a fine. I take that
back. I take that back. The Court imposes
upon you the maximum fine under the sentencing
guidelines, $4 million. I don't think you
have the capability of paying it, and you
cannot be required or any sanction levied
against you due to a genuine inability to pay.
There's a great deal of money here and if the
government can find any of it we'll have it
applied to that fine. (emphasis added)

9
The presentence report for Pérez states that "[t]he
defendant did not bring the requested financial information to the
presentence interview. As of the date of the disclosure of this
report, the defendant had not submitted a financial statement." It
further states that the statutory maximum fine that could be
imposed on Pérez, pursuant to 21 U.S.C. § 841(b)(1)(A), was $4
million, and that the Guidelines range, pursuant to U.S.S.G.
§ 5E1.2(c)(1) and (c)(4), was $20,000 to $4 million.

-37-
 Pérez argues that since the court found an inability to

pay, no fine should be imposed.

Guideline § 5E1.2(a) places the burden on the defendant

to establish inability to pay a fine: "The court shall impose a

fine in all cases, except where the defendant establishes that he

is unable to pay and is not likely to become able to pay any fine."

See also United States v. Savoie, 985 F.2d 612, 620 (1st Cir. 1993)

("[U]nder the guidelines, a fine is the rule -- and it is the

defendant's burden to demonstrate that his case is an exception.").

The showing required of the defendant is not only of present

indigence, but also of future inability to pay: "To meet his

burden, a defendant must establish that it is more likely than not

that he is both unable to pay a fine and will not be able to pay in

the future. . . . A present lack of assets or even a negative net

worth will not preclude imposition of a fine unless a defendant

also demonstrates that he lacks the ability to earn and to pay a

fine in the future." United States v. Rowe, 268 F.3d 34, 38 (1st

Cir. 2001) (citations omitted).

"Express findings about a defendant's financial condition

are not necessary to support the imposition of a fine if the record

is sufficient to permit appellate review. As long as the record

evidence supports a fine, the district court is presumed to have

-38-
considered the applicable statutory criteria." Id. at 39

(citations omitted).10

The record supports the district court's decision to

impose the fine. Pérez's "inability to pay does not follow

inexorably from the facts in the record." Peppe, 80 F.3d at 23.

Here, we understand the district court to have concluded that while

Pérez might have no present ability to pay, he had not shown that

he was not likely to become able to pay. The court quite

reasonably determined that Pérez might be or become in possession

of some of the ill-gotten gains of the conspiracy. Cf. United

10
Here, the criteria the court was to consider included:
(1) the need for the combined sentence to
reflect the seriousness of the offense
(including the harm or loss to the victim and
the gain to the defendant), to promote respect
for the law, to provide just punishment and to
afford adequate deterrence;
(2) any evidence presented as to the
defendant's ability to pay the fine (including
the ability to pay over a period of time) in
light of his earning capacity and financial resources;
(3) the burden that the fine places on the
defendant and his dependents relative to
alternative punishments;
. . . and
(8) any other pertinent equitable considerations.

The amount of the fine should always be
sufficient to ensure that the fine, taken
together with other sanctions imposed, is
punitive.
U.S.S.G. § 5E1.2(d). The district court is directed to consider
similar factors under 18 U.S.C. § 3572(a), including "the need to
deprive the defendant of illegally obtained gains from the
offense." Id. § 3572(a)(5).

-39-
States v. Lujan, 324 F.3d 27, 34 (1st Cir. 2003) (stating that "the

district court must consider, among other things . . . the need to

deprive the defendant of ill-gotten gains").

2. Government's Appeal from Olivero's Sentence

The government asks that Olivero's sentence be vacated

and the matter be remanded for resentencing. First, the government

argues that the district court erred in holding that Apprendi

precluded it from finding a drug quantity above 499 grams

(particularly in the face of evidence that Olivero was responsible

for a considerably greater quantity of cocaine). Second, the

government argues, the court erred in declining to follow the

Guidelines in order to punish the prosecution for what the court

considered to be impermissible fact bargaining. Specifically, the

government takes issue with the court's decision to a) deny a

firearms enhancement under U.S.S.G. § 2D1.1(b)(1), even though it

found that the facts warranting the enhancement had been shown by

a preponderance of the evidence, and b) grant a reduction in

Olivero's offense level under § 3B1.2(a) for being a minimal

participant, when it was clear that Olivero was not a minimal

participant.

Olivero, a prime actor in the conspiracy, received only

a 48-month sentence in the face of a statutory maximum of 20

-40-
years.11 The overall conspiracy involved possession with intent to

distribute 260 kilograms of cocaine.

a. How the Court Arrived at Olivero's Sentence

Olivero and 20 other defendants in this case were

indicted on December 20, 2001. Before trial, there was a flurry of

plea bargaining activity: in all, 15 of the 21 defendants pled

guilty, seven "on the very eve of trial." Green, 346 F. Supp. 2d

at 325.

On July 10, 2002, the probation office was asked to

prepare a "pre-plea" presentence report for Olivero. Evidently

this judge of the district court orders such "pre-plea" presentence

reports as a matter of course. See id. at 279 ("This court has

burdened an already strained probation office by ordering pre-plea

presentence reports in virtually every case as the best defense to

illegal fact bargaining."). The "pre-plea" presentence report was

prepared on October 29, 2002. It discussed the possibility of a

minimal-role reduction for Olivero, but rejected it as not

warranted on the evidence. It did not mention that Olivero had

possessed a firearm.

11
Because the jury convicted Olivero of conspiracy to possess
cocaine with intent to distribute, and because the conspiracy as a
whole had been charged with responsibility for more than five
kilograms of cocaine, the government originally argued in the
district court that the statutory maximum applicable to Olivero was
life imprisonment. See 21 U.S.C. § 841(b)(1)(A). It has dropped
that argument on appeal, conceding that the "default 20-year
statutory maximum" applies.

-41-
 On October 14, 2002, the U.S. Attorney sent to Olivero's

attorney the plea agreement that they had negotiated, and Olivero

and his attorney signed the document on October 30, 2002. In the

proposed agreement, there was no mention of a weapon or a weapons

enhancement, and the government agreed not to oppose a minimal

participant downward adjustment pursuant to U.S.S.G. § 3B1.2(a).

At the time, the government was also negotiating agreements with a

number of co-defendants.

The proposed deal fell through on November 1, 2002, just

before trial was to begin on November 4. Olivero withdrew from the

deal when, at the hearing on acceptance of the plea, the court

informed him that a plea would likely result in his immediate

remand to custody. Green, 346 F. Supp. 2d at 325. Olivero went to

trial. Switching from its position during the plea agreement, the

government presented evidence at trial tending to show that

Olivero's role in the offense was more than minimal and connecting

Olivero to a handgun whose ownership was in dispute. The jury

returned its verdict, finding Olivero guilty, on December 12, 2002.

The post-conviction presentence report, dated April 10,

2003, states that a handgun was found in Olivero's bedroom, along

with ammunition, 14.4 grams of cocaine, a scale, and a money-

counting machine. Under U.S.S.G. § 2D1.1(b)(1), this meant a two-

-42-
level enhancement applied.12 The Probation Office took the position

that an adjustment for minimal role in the offense was not

warranted.

The court first found Olivero responsible for "at least

499 grams" of cocaine, which led to a base offense level of 24.

The court explained that because the jury left Olivero's drug

quantity space blank on its verdict form, the jury must have found

that the prosecution failed to prove as to him a quantity of 500

grams or more beyond a reasonable doubt. The court further stated

that under Apprendi, a judge could not find a higher drug quantity

on his own, by a mere preponderance of evidence.

Second, the court found that Olivero in fact possessed a

gun in furtherance of the crime, but it declined to impose a

sentence enhancement, citing what it viewed as the government's

improper fact-bargaining, that is, an improper inconsistency

between the government's willingness to ignore the gun enhancement

as part of a plea agreement and its request for the gun enhancement

after trial. The district court emphasized that the "pre-plea"

presentence report did not mention a firearm. The court stated

12
Under the Guidelines, if the defendant's offense involved
possession of a dangerous weapon, his offense level is to be
increased by two levels. See U.S.S.G. § 2D1.1(b)(1). Application
Note 3 to this Guideline elaborates: "The enhancement for weapon
possession reflects the increased danger of violence when drug
traffickers possess weapons. The adjustment should be applied if
the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense."

-43-
that the prosecution knew that a weapon had been found in Olivero's

room "before the preplea was entered into," and rejected the

prosecution's argument that the facts necessary to prove gun

possession became clearer as the prosecution prepared for and

ultimately conducted the trial.13 As a result, the court punished

the prosecution by refusing to enhance the sentence, even though

the April 10, 2003 post-conviction presentence report had

recommended the two-level U.S.S.G. § 2D1.1(b)(1) firearm

enhancement.

Third, the court addressed Olivero's role in the offense.

If a defendant is a "minimal" participant in criminal activity, his

offense level is to be decreased by four levels. See U.S.S.G.

§ 3B1.2(a). If he is a "minor" participant, the reduction is two

levels, and if his role is somewhere in between, the reduction is

three levels. Id. § 3B1.2. The court awarded Olivero a 4-point

minimal-role reduction. It found that the government had offered

to recommend this reduction as part of the proposed plea agreement

and, in the court's view, had engaged in improper fact-bargaining

13
The government explained that once the intense period of
plea bargaining was over and Olivero had rejected the plea, it had
focused much more intently on the evidence it would present at
trial. The government interviewed more witnesses and it became
clearer to it that the weapon had been there, under Olivero's bed,
not for other reasons, but in connection with the cocaine and drug
proceeds in his closet.

-44-
by taking different positions.14 In essence, the court stated, the

prosecution's change of position had burdened Olivero's right to

insist on a jury trial.

Based on these calculations, Olivero's Guidelines

sentencing range was 33 to 41 months. The court departed upwards

by seven months because Olivero was "in with these people" and not

"some bit player" and because the conspiracy was extraordinarily

extensive and dangerous -- facts it considered not sufficiently

reflected in the Guidelines range.

The defendant had not advanced the arguments used by the

district court to deny the gun enhancement or to grant the minimal

participant downward departure. From what we can tell of the

record, Olivero did not allege that the prosecution was retaliating

against him for insisting on trial, much less offer any evidence in

support of such a claim. Instead, the court raised the fact-

bargaining issue sua sponte. It also placed the initial burden on

the prosecution to explain itself.15

14
The court's comments at sentencing did not make entirely
clear whether it considered the minimal-role reduction issue to be
one of fact bargaining. The court's post-sentencing memorandum,
however, suggests that that is indeed how the court viewed the
matter. See Green, 346 F. Supp. 2d at 330 (stating that
government's denial that there was fact bargaining with respect to
Olivero's role was "disingenuous").

15
Olivero did object to the presentence report, claiming that
the evidence supported a minimal role adjustment and that the
government had earlier acknowledged as much. He did not hint at
any prosecutorial vindictiveness, emphasizing instead the evidence
itself. As for the gun, Olivero only objected on the basis that

-45-
 On June 18, 2004, after the defendants had appealed their

convictions and jurisdiction over their cases was in this court,

the district court, sua sponte, published an 80-page advisory

opinion (which it styled as a sentencing memorandum) in which it

expanded upon its reasons for sanctioning the government. See

Green, 346 F. Supp. 2d 259.

b. Analysis of District Court's Rationale

i. Apprendi

The district court post-Booker may determine drug

quantity for purposes of sentence enhancements under the

Guidelines. The district court's Apprendi rationale for limiting

its consideration of drug quantity was simply a wrong guess as to

the direction the law would take. The district court was not

"constrained" by the jury's verdict, as it thought it was, to

finding less than 500 grams of cocaine. Instead, it could (and

should) have found Olivero responsible for the amount of cocaine

established by a preponderance of the evidence against him --

though of course, the ultimate sentence may not exceed the

the weapon did not belong to him and that the evidence did not
support the firearm enhancement, without mentioning the
government's earlier position -- much less attributing any improper
motive to the government. At sentencing, Olivero's attorney simply
followed the court's lead, expressing agreement with the court's
view that the government knew all along about the gun. The
attorney then raised the prosecution's earlier support for the
minimal role reduction, again failing to allege any sort of
improper motive or vindictiveness.

-46-
statutory maximum of 20 years. That alone is reason to vacate the

sentence and to remand.

We go on to address the government's claims of Guidelines

and statutory error. See Antonakopoulos, 399 F.3d at 76.

ii. Fact Bargaining

The district court offered three rationales for its

reduction of Olivero's sentence as a punishment of the prosecution

for "unconstitutional" or "illegal" fact bargaining. The first

rationale was that the defendant's right to trial by jury was

impermissibly burdened by the government's change in position on

the firearm enhancement and minimal role adjustment between plea

bargaining and trial. The second was that the punishment was

justified because the government somehow deceived the court. The

third was that the Guidelines prohibited the government from doing

what it did and the appropriate sanction was to give the defendant

a lower sentence.

The court was attempting to address some aspects of the

pre-Booker mandatory guidelines system which it considered

particularly unfair and to address the power given to the

prosecution by the Guidelines. The court is also passionate about

protecting the right to trial by jury. That the court felt

strongly is evidenced by the fact that it acted sua sponte:

Olivero did not seek a reduction in his sentence on any of these

grounds.

-47-
 Booker's rendering of the Guidelines advisory (subject to

restraints for reasonableness) may alleviate some of the concerns

which motivated the court. In this case, however, none of the

district court's rationales justify the sentence it imposed.

(a) Fact Bargaining and the Right to a Jury Trial

The term "fact bargaining" has been used loosely to cover

a variety of situations, from affirmative misrepresentations to a

court to more benign agreements by counsel to base sentencing on

other factors. Fact bargaining may arise when there are different

views of the facts, counsels' ability to prove them, and their

consequences. See, e.g., Sarner, "Fact Bargaining" Under the

Sentencing Guidelines: The Role of the Probation Department, 8 Fed.

Sent. R. 328, 1996 WL 671569, at *2 ("Counsel for both sides must

assess their prospects for success before a jury, based on a wide

variety of conflicting factors that develop during the government's

investigation and as available defenses. That the truth appears

somewhere in between, after the dust has settled, is a world view

shared by most criminal practitioners. . . . The basic assumption

behind plea and fact bargaining is that criminal conduct, like

human behavior in other contexts, is never black and white.").

Many of the district court's objections are to the

inevitable artifacts and consequences of plea bargains. Those

consequences have been accepted as beneficial to society and raise

no constitutional concerns. Plea bargaining is an essential part

-48-
of our criminal justice system and is "a highly desirable part for

many reasons." Santobello v. New York, 404 U.S. 257, 261 (1971);

accord Blackledge v. Allison, 431 U.S. 63, 71 (1977). Plea

bargaining takes place between the prosecution and the defense, and

does not involve the court.

There are very few rules imposed on the prosecution as to

plea bargaining with the defense, save that it may not coerce a

plea. For example, Rule 11(c) of the Federal Rules of Criminal

Procedure, which governs "Plea Agreement Procedure," "says next to

nothing on how plea negotiations are to be carried out" and "does

not reach the question of what the attorney for the government and

the attorney for the defendant can say to each other." 1A C.

Wright, Federal Practice and Procedure § 175.1 (3d ed. 1999)

(discussing former Rule 11(e), predecessor to Rule 11(c)).

While the government may not coerce a defendant into an

involuntary plea, the government has a wide latitude in how it

reaches a plea.16 See id. For example, the prosecutor may insist,

as a condition of a plea, that the defendant waive all appellate

16
The government also has wide latitude in investigating and
prosecuting crimes. Cf. United States v. Bezanson-Perkins, 390
F.3d 34, 36 (1st Cir. 2004) (in context of defendant's challenge to
his conditional guilty plea, rejecting theory that "a defendant who
has given a valid Miranda waiver may seek to suppress his later
voluntary and uncoerced statements to the police on the grounds
that (arguably) misleading statements by the police invalidated his
Miranda waiver"); United States v. Byram, 145 F.3d 405, 408 (1st
Cir. 1998) (with respect to obtaining confessions, "trickery is not
automatically coercion").

-49-
rights. See United States v. Teeter, 257 F.3d 14, 21-23 (1st Cir.

2001). The prosecution may insist on a waiver of rights under

Brady v. Maryland, 373 U.S. 83 (1963). Under some circumstances,

the prosecution may refuse to disclose certain kinds of exculpatory

material to the defendant in the course of plea bargaining. See

United States v. Ruiz, 536 U.S. 622, 633 (2002). And if the

negotiations are not successful, due process is not violated if the

prosecutor carries out threats made during the negotiations that

the defendant will be reindicted on a more serious charge which

will bring higher penalties. Bordenkircher v. Hayes, 434 U.S. 357,

365 (1978).

Defendants who plead guilty will receive a benefit in

sentencing over those who do not, in both charge bargaining and

fact bargaining situations. Because they benefit, they neither

have any constitutional claim nor have any interest in asserting a

claim that their agreement is unconstitutional, unless the plea is

involuntary.17 See id. at 363 ("Plea bargaining flows from 'the

17
Commentators have raised as a possible infirmity of fact
bargaining that a defendant would receive an unduly lenient
sentence because the government did not fully disclose the facts.
Such circumstances, of course, benefit defendants, so there is no
concern about intrusion on a defendant's constitutional rights.
See generally Bowman, To Tell the Truth: The Problem of
Prosecutorial "Manipulation" of Sentencing Facts, 8 Fed. Sent. R.
324, 1996 WL 671568, at *2; Weinstein, Fifteen Years after the
Federal Sentencing Revolution: How Mandatory Minimums Have
Undermined Effective and Just Narcotics Sentencing, 40 Am. Crim. L.
Rev. 87, 120 (2003). There is an institutional concern, and it is
said to stem from the ethical requirement that counsel not mislead
the courts and from the Sentencing Guidelines themselves. See

-50-
mutuality of advantage' to defendants and prosecutors, each with

his own reasons for wanting to avoid trial." (quoting Brady v.

United States, 397 U.S. 742, 752 (1970))).

The fact that the defendant who pleads gets a benefit

over those who go to trial and are convicted is a necessary

artifact of any plea bargaining regime. The law long ago

determined there was nothing unconstitutional or illegal about any

"burden on trial rights" caused by such a differential. "While

confronting a defendant with the risk of more severe punishment

clearly may have a 'discouraging effect on the defendant's

assertion of his trial rights, the imposition of these difficult

choices [is] an inevitable' -- and permissible -- 'attribute of any

legitimate system which tolerates and encourages the negotiation of

pleas.'" Id. at 364 (quoting Chaffin v. Stynchcombe, 412 U.S. 17,

31 (1973)). The Supreme Court has "unequivocally recognize[d] the

constitutional propriety of extending leniency in exchange for a

plea of guilty and of not extending leniency to those who have not

demonstrated those attributes on which leniency is based." Corbitt

v. New Jersey, 439 U.S. 212, 224 (1978); see also id. at 223

("There is no doubt that those homicide defendants who are willing

generally Klein, Due Process Denied: Judicial Coercion in the Plea
Bargaining Process, 32 Hofstra L. Rev. 1349, 1384 (2004); Nagel,
Foreword -- Structuring Sentencing Discretion: The New Federal
Sentencing Guidelines, 80 J. Crim. L. & Criminology 883, 935-37
(1990); Schulhofer & Nagel, Plea Negotiations Under the Federal
Sentencing Guidelines: Guideline Circumvention and its Dynamics in
the Post-Mistretta Period, 91 Nw. U. L. Rev. 1284 (1997).

-51-
to plead non vult may be treated more leniently than those who go

to trial, but withholding the possibility of leniency from the

latter cannot be equated with impermissible punishment as long as

our cases sustaining plea bargaining remain undisturbed.").

"[A]fter trial, the factors that may have indicated leniency as

consideration for the guilty plea are no longer present." Alabama

v. Smith, 490 U.S. 794, 801 (1989) (citing Brady, 397 U.S. at 752).

It is clear that "[t]he fact that those who plead generally receive

more lenient treatment, or at least a government recommendation of

more lenient treatment than co-defendants who go to trial, does not

in and of itself constitute an unconstitutional burden on one's

right to go to trial and prove [one's] case." United States v.

Rodriguez, 162 F.3d 135, 152 (1st Cir. 1998).

There is a different concern, of constitutional

dimension, that the government not act vindictively in retaliation

against the exercise of rights by a defendant. See North Carolina

v. Pearce, 395 U.S. 711, 725 (1969). But the Pearce line of

decisions deals with circumstances different from Olivero's case

and arises in the context of 1) resentencing in a second trial

after the defendant has obtained a new trial by appeal or

collateral attack or 2) resentencing after the defendant has

successfully withdrawn a guilty plea. See Pearce, 395 U.S. at 725

("Due process of law, then, requires that vindictiveness against a

defendant for having successfully attacked his first conviction

-52-
must play no part in the sentence he receives after a new trial.");

Smith, 490 U.S. at 795.

The Supreme Court has said that how the government acts

during plea bargaining raises no vindictiveness concerns, but only

concerns of whether the plea was voluntary.18 Indeed, in

Bordenkircher, the Court held that the due process concerns

expressed in the Pearce line of cases about punishment or

retaliation are simply not present in a plea bargaining situation.

"[I]n the 'give-and-take' of plea bargaining, there is no such

element of punishment or retaliation so long as the accused is free

to accept or reject the prosecution's offer." 434 U.S. at 363.

Here, the defendant withdrew from the plea agreement, so the

knowing and voluntary test under Boykin v. Alabama, 395 U.S. 238,

242 (1969), does not come into play.19

18
While Bordenkircher involved imposition of a greater charge
and not a greater sentence recommendation on the defendant's
rejection of the plea agreement, the Supreme Court said that the
higher charge was functionally equivalent to a sentencing
recommendation scenario. See Bordenkircher, 434 U.S. at 363
("Indeed, acceptance of the basic legitimacy of plea bargaining
necessarily implies rejection of any notion that a guilty plea is
involuntary in a constitutional sense simply because it is the end
result of the bargaining process. By hypothesis, the plea may have
been induced by promises of a recommendation of a lenient sentence
or a reduction of charges, and thus by fear of the possibility of
a greater penalty upon conviction after a trial.").

19
Even when a guilty plea is at issue, this court has rejected
arguments that pressure to enter a plea is sufficient to render the
plea involuntary. See, e.g., United States v. Mescual-Cruz, 387
F.3d 1, 7 (1st Cir. 2004) (stating with respect to package plea
arrangements, where "the prosecutor offers a benefit or detriment
to all (the defendant and third parties) in order to persuade the

-53-
 Even assuming there is, post-Bordenkircher, some role for

a vindictiveness analysis in this situation, see United States v.

Goodwin, 457 U.S. 368, 380 n.12, 384 (1982); Smith, 490 U.S. at

802-03, the concern is with prosecutorial vindictiveness, not with

the possibility that defendants face some burden on the right to

trial in the form of a risk of a higher sentence. See Blackledge

v. Perry, 417 U.S. 21, 27-28 (1974); cf. Johnson v. Vose, 927 F.2d

10 (1st Cir. 1991). The district court focused on burden on a

defendant's trial rights and did not find vindictiveness. Indeed,

there was no basis for a conclusion either that Olivero's rights to

trial were burdened or that he was the subject of vindictiveness.20

entire group of defendants to plead guilty," that there is a risk
that "there may be a family relationship between two defendants
which leads one defendant to involuntarily sacrifice his own best
interests for those of a family member (or perhaps both family
members to involuntarily sacrifice themselves) in a belief that the
package deal will benefit the other"); id. at 7-8 ("As to this . .
. risk, there is a distinction to be drawn. The concern of the law
is for voluntariness. 'If a defendant elects to sacrifice himself
[to protect someone close to him] that is his choice, and he cannot
reverse it after he is dissatisfied with his sentence, or with
other subsequent developments.'" (quoting United States v. Buckley,
847 F.2d 991, 1000 n.6 (1st Cir. 1988))); see also Buckley, 847
F.2d at 1000 n.6 (rejecting argument that where the government
"promises lenient treatment of a pleading defendant's family
member," the plea bargain is per se substantively unfair).

20
In Goodwin, additional charges were brought after the
defendant rejected a guilty plea and demanded a jury trial.
Goodwin, 457 U.S. at 370-71. The Supreme Court's rationale for
rejecting a presumption of vindictiveness in that case is equally
applicable in this context:
There is good reason to be cautious before
adopting an inflexible presumption of
prosecutorial vindictiveness in a pretrial
setting. In the course of preparing a case

-54-
A defendant simply has no right to a sentence, after trial, that is

as lenient as a sentence he could have had earlier in a plea

bargain. See United States v. McMillian, 583 F.2d 1061, 1063 (8th

Cir. 1978) ("Appellant's claim, is, in essence, that a trial court

is bound by the most favorable offer as to sentence made by the

prosecutor during the course of plea negotiations, regardless of

whether that offer is accepted or rejected by the defendant. This

claim is fatuous.").

(b) Deception of the Court

The district court had a separate set of concerns -- that

the prosecution provide it with accurate information for sentencing

purposes, both during the hearing on the plea and at sentencing

after the trial. The court was disturbed because during the plea

for trial, the prosecutor may uncover
additional information that suggests a basis
for further prosecution or he simply may come
to realize that information possessed by the
State has a broader significance. At this
stage of the proceedings, the prosecutor's
assessment of the proper extent of prosecution
may not have crystallized. In contrast, once
a trial begins -- and certainly by the time a
conviction has been obtained -- it is much
more likely that the State has discovered and
assessed all of the information against an
accused and has made a determination, on the
basis of that information, of the extent to
which he should be prosecuted. Thus, a change
in the charging decision made after an initial
trial is completed is much more likely to be
improperly motivated than is a pretrial
decision.
Id. at 381.

-55-
bargaining process no mention was made to it or to the probation

office of the firearm in Olivero's bedroom.21 Of course, it was

both the prosecution and the defense which kept silent.

The district court felt its position was justified by the

Guidelines Policy Statement on Stipulations set forth at § 6B1.4,

which provides:

(a) A plea agreement may be accompanied by a
written stipulation of facts relevant to
sentencing. Except to the extent that a party
may be privileged not to disclose certain
information, stipulations shall:
(1) set forth the relevant facts and
circumstances of the actual offense
conduct and offender characteristics;
(2) not contain misleading facts; and
(3) set forth with meaningful specificity
the reasons why the sentencing range
resulting from the proposed agreement is
appropriate.

U.S.S.G. § 6B1.4; see also Green, 346 F. Supp. 2d at 278 n.69

(citing U.S.S.G. § 6B1.4(a)(2) & cmt.); id. at 328 n. 363 (same).

It is likely that the policy statements in Chapter Six of

the Guidelines Manual, like those in Chapter Seven, are advisory,

not mandatory. See Ellis v. U.S. Dist. Court (In re Ellis), 356

F.3d 1198, 1214-15 (9th Cir. 2004) (en banc) (Kozinski, J.,

concurring) (arguing that the policy statements in Chapter Six of

21
The minimal-role reduction issue was qualitatively
different. There was no lack of notice to the court or the
probation office. The probation office itself had sufficient
information to conclude in its pre-plea PSR that a minimal role
adjustment was unwarranted. The court had this information before
it at both the plea and the sentencing stages.

-56-
the Guidelines Manual are only "hortatory," in part because Chapter

Six, like Chapter Seven, "is made up entirely of policy statements

and their commentary" and "contains no guidelines"); United States

v. O'Neil, 11 F.3d 292, 301 n.11 (1st Cir. 1993) ("[W]e today join

six other circuits in recognizing Chapter 7 policy statements as

advisory rather than mandatory."). Treating the policy statement

as advisory recognizes the difficulty of enforcement of any such

rule. In any event, the policy statement provides no justification

for a court to sentence a defendant on any basis other than the

facts before it, much less does it provide a justification for a

court to disregard the facts before it as a "remedy" for the

government's earlier failure to provide all the facts.

The proposition, implicit in the court's view, that

sentencing would be better if there were utter candor and complete

disclosure as to all points by the prosecution is itself

problematic. Counsel should not affirmatively misstate the

material facts at sentencing. See United States v. Casas, 425 F.3d

23, 2005 U.S. App. LEXIS 21960, at *35-41 (1st Cir. 2005). Still,

there is a line, admittedly ambiguous, between an affirmative

misrepresentation of facts presented at sentencing and how

prosecutors (and defendants) handle unclear or less provable facts.

See Gardner & Rifkind, A Basic Guide to Plea Bargaining Under the

Federal Sentencing Guidelines, 7 Crim. Just. 14, 16 (Summer 1992)

("The stipulation cannot contain misleading facts. . . . Where

-57-
facts are unclear or unascertainable, the parties may agree on some

form of them without further justification or explanation to the

court." (citation omitted) (citing U.S.S.G. § 6B1.4(a)(2))).

Even if the prosecutor knew and could prove a gun

enhancement at the time of the plea bargain, that fact would not

make a difference to our analysis. No misrepresentation was made;

rather, there was an omission, helpful to the defendant, which was

an implicit part of the bargain. Rule 11(c)(1)(B) expressly

contemplates that the attorney for the government can agree with

the defendant's request that a sentencing factor does or does not

apply, though this is not binding on the court. See Fed. R. Crim.

P. 11(c)(1)(B). It was under that rule that Olivero's plea was

tendered. If the defendant and the government have agreed on a

sentence free of a possible enhancement, there is a significant

question as to why they should be burdened with an obligation to

disclose the evidence supporting the enhancement at a plea hearing.

The obligation imposed by the Rule is to "disclose the plea

agreement." Fed. R. Crim. P. 11(c)(2).

A system of mandatory disclosure of all possible

information at a plea hearing would not usually help defendants.

Moreover, the costs of monitoring compliance with such a mandatory

disclosure system are high, and many of the efficiencies created by

plea bargaining would be lost. It would also lead to the blurring

of roles. After all, the federal rules prohibit involvement by a

-58-
trial judge in plea bargaining. This is true whether through the

front door or the back. See Fed. R. Crim. P. 11(c)(1) ("An

attorney for the government and the defendant's attorney . . . may

discuss and reach a plea agreement. The court must not participate

in these discussions."); cf. 1A C. Wright, Federal Practice and

Procedure § 175.1 (3d ed. 1999) ("That the defendant has accepted

a bargain proposed by the prosecutor creates no constitutional

right to have the bargain specifically enforced. 'A plea bargain

standing alone is without constitutional significance . . . .'"

(quoting Mabry v. Johnson, 467 U.S. 504, 507-08 (1984))). In

short, what happened here involved the artifacts of a system which

is well accepted. While Congress and the Supreme Court could have

chosen to structure matters differently, they have not.

The district court was correct to condemn any deception

of the court.22 But here, no claim of deception of the court is

possible. The court, at the time of sentencing, did have all the

facts before it on which to impose a sentence, and Olivero had fair

22
In rare instances, the doctrine of fraud on the court will
warrant remedial action. See Herring v. United States, 424 F.3d
384, 386-87 (3d Cir. 2005) ("[A] determination of fraud on the
court may be justified only by 'the most egregious misconduct
directed to the court itself,' and . . . it 'must be supported by
clear, unequivocal and convincing evidence.'" (quoting In re
Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions,
538 F.2d 180, 195 (8th Cir. 1976))); Geo. P. Reintjes Co. v. Riley
Stoker Corp., 71 F.3d 44, 48 (1st Cir. 1995) (stating that the
"fraud cognizable to maintain an untimely independent attack upon
a valid and final judgment has long been regarded as requiring more
than common law fraud").

-59-
notice of the issues. The prosecution had put on evidence at trial

showing Olivero's ownership of the gun; Olivero in turn had pointed

the finger at another defendant. The evidence was reviewed in the

post-conviction presentence report, with Olivero objecting to the

suggestion that he owned the gun and the probation office defending

its stance. At sentencing, ownership of the gun was discussed yet

again. The same abundance of evidence and debate characterized the

issue of Olivero's role in the offense, culminating in the court's

conclusion that Olivero was assuredly not "some bit player" or

"casual hanger-on," but rather was "in with these people." There

can be no suggestion that at the time of sentencing, the government

was deceiving the court by hiding evidence of any sort, whether

inculpatory or exculpatory.23 The prosecution does not argue that

it has a right to lie to a court and it did not do so here.

(c) Fact Bargaining and Other Provisions of the

Guidelines

The court also referred to other provisions of the

Guidelines themselves as imposing an obligation on the government

to disclose all information at the stage a court is considering a

plea and not to change its position thereafter. This misreads the

23
There is an obligation imposed on the district courts to
sentence based on all information in the record which is not false
or materially incorrect. See United States v. Tavano, 12 F.3d 301,
305 (1st Cir. 1993). As Tavano noted, the Federal Rules of
Criminal Procedure are designed to procure such information. Id.
There is no possible argument here that there was a violation of
those rules.

-60-
Guidelines. One argument from the Sentencing Guidelines is that

§ 1B1.3 ("Relevant Conduct") specifies that the base offense level

and adjustments be based on "all acts and omissions committed,

aided, abetted, counseled, commanded, induced, procured, or

willfully caused by the defendant" and "all harm that resulted

from" those acts. U.S.S.G. § 1B1.3(a)(1)(A), (3). There is no

claim that the government did not provide such information at

sentencing. Ironically, the district court sanctioned the

government because it did advance exactly such evidence of relevant

conduct at sentencing. By its terms, U.S.S.G. § 1B1.3 concerns

what the court should do with the information before it at

sentencing and does not create a set of sanctions against the

government.

The other Guidelines concern arises from Application Note

1 to U.S.S.G. § 1B1.8 ("Use of Certain Information"), which simply

makes it clear that that particular Guideline does not authorize

the government to withhold information from the court. In any

case, there is no evidence here that Olivero provided self-

incriminating information that the prosecution withheld from the

court, so § 1B1.8 is inapplicable.

(d) Summary

The prosecution's conduct here transgressed no norm,

constitutional or legal. There was no cause to punish the

prosecution at all. We defer until some other case the question of

-61-
whether a district court may ever reduce a defendant's sentence as

a sanction against the government for its conduct in earlier

negotiating a plea which is not accepted. But we do note that the

sentencing objectives set by the statute, 18 U.S.C. § 3553(a)(2),

refer to punishment of the offender, deterrence of crime,

protection of the public, and rehabilitation.

The sentencing of Olivero is vacated and the matter is

remanded to the district court. Olivero thus will be resentenced

in a post-Booker regime in which the Guidelines are no longer

mandatory. We have reversed each of the rationales relied on by

the district court, in the government's sentencing appeal, as a

matter of law. This means that any reliance upon them at

resentencing would be inherently unreasonable. See Booker, 125 S.

Ct. at 765-66.

III. Conclusion

The convictions of all three defendants are affirmed.

The judgment in Yeje-Cabrera's case as to forfeiture is ordered to

be amended as described in this opinion and his sentence is

otherwise affirmed. Pérez's sentence is affirmed. Olivero's

sentence is vacated and his case is remanded to the district court

for resentencing consistent with this opinion.

-62-