United States Court of Appeals
For the First Circuit
No. 04-2062
UNITED STATES OF AMERICA,
Appellee,
v.
ROY PIZARRO-BERRÍOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Jorge L. Armenteros-Chervoni, for appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Assistant United States Attorney, and H.S.
García, United States Attorney, were on brief, for appellee.
May 5, 2006
TORRUELLA, Circuit Judge. Defendant-Appellant Roy
Pizarro-Berríos ("Pizarro") pled guilty pursuant to a straight plea
(i.e., without a plea agreement) to conspiracy to commit credit
card, bank fraud, and conspiracy to launder money. He now appeals,
arguing that his plea was not knowing and intelligent and
challenging his sentence. We affirm in part, vacate in part, and
remand to the district court.
I.
Pizarro participated in a conspiracy involving the use of
counterfeit credit cards, forged checks, and false identification
documents to purchase merchandise from various businesses. The
merchandise was used either for the conspirators' benefit or
resold, with the earnings being distributed to members of the
conspiracy. The conspiracy ran from December 2002 through November
2003. Pizarro's role in the conspiracy was to make purchases at
local businesses using the counterfeit credit cards.1
In April 2003, Pizarro was arrested and put in state
custody after attempting to make a purchase at a supermarket in the
town of Canóvanas, Puerto Rico, using a forged check. While being
held in state custody, Pizarro gave an oral statement (the
1
A more detailed discussion of the various aspects of the
underlying conspiracy is not necessary for a resolution of this
case.
-2-
"confession")2 to Agent Israel Santiago-Monserrate ("Santiago") of
the Puerto Rico Police Department, discussing the details of the
conspiracy and his involvement in it. Santiago transcribed the
confession and Pizarro signed the document. Pizarro was
incarcerated in state prison on July 7, 2003. On August 21, 2003,
Pizarro entered a guilty plea to the state charges and was
sentenced to two years in prison.
Meanwhile, the other conspirators were arrested by
federal authorities. On December 3, 2003, Pizarro was released
from state prison pursuant to a writ of habeas corpus ad
prosequendum so that he could face federal charges for his
involvement in the conspiracy. On December 8, a federal grand jury
returned an indictment against the members of the conspiracy.
Counsel was appointed for Pizarro on December 10. On January 28,
2004, a twelve-count superseding indictment issued. The
superseding indictment charged Pizarro with conspiracy to commit
credit card fraud, in violation of 18 U.S.C. §§ 371, 1029(a)
("Count One"); bank fraud, in violation of 18 U.S.C. §§ 2, 1344
("Count Two"); conspiracy to launder money, in violation of 18
U.S.C. § 1956(a)(1) and (h) ("Count Three"); and identification
fraud, in violation of 18 U.S.C. § 1028(a)(4) ("Count Nine").
2
The parties argue about whether the statement was a confession,
a sworn statement, or simply a statement. For the sake of clarity,
we will refer to it as a "confession," as we will also be
discussing other statements Pizarro made.
-3-
According to the government, Pizarro spoke with federal
agents prior to his federal indictment and indicated that he wanted
to cooperate with the government. Some of these conversations were
summarized in what the FBI calls 302 forms.3 The government
eventually offered Pizarro a plea agreement, which he decided not
to take after consulting with his counsel. According to the
government, the Assistant United States Attorney ("AUSA") handling
the case told Pizarro's counsel that none of Pizarro's statements
summarized in the 302 forms would be used at trial.
On February 24, 2004, Pizarro filed a motion for change
of plea. At a change of plea hearing held before the district
court on March 1, 2004, Pizarro entered a straight guilty plea to
Counts One through Three. Count Nine was dismissed.4 Pizarro's
Presentence Report ("PSR") assigned him a base offense level of 6.
After relevant enhancements and reductions were calculated,
Pizarro's total offense level was 26.5 Combined with a Criminal
3
302 forms are what the FBI calls reports its agents make
summarizing interviews with witnesses or suspects.
4
Count Nine charged Pizarro with actions that occurred on
July 21, 2003. However, as Pizarro was incarcerated at that time,
the government conceded that it had misidentified Pizarro as to
Count Nine. The district court therefore dismissed the count at
the change of plea hearing.
5
The PSR recommended a fourteen-level enhancement under U.S.S.G.
§ 2B1.1(b)(1)(H) because the offenses involved a loss in excess of
$400,000; a two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A)
because the offenses involved more than ten but fewer than fifty
victims; a two-level enhancement under U.S.S.G. § 2B1.1(b)(3)
because the offenses involved a theft from the person of another;
-4-
History Category of II, the applicable Guidelines range was 70-87
months' imprisonment.
The PSR referenced the confession Pizarro had provided to
Agent Santiago, as well as the statements found in the 302 forms.
Upon reading the PSR, Pizarro's counsel called the Probation
Officer, Andrea Cribben ("Cribben"). Cribben told Pizarro's
counsel that she had received the confession from the case agent.
According to Pizarro, his counsel also contacted AUSA Juan Milanés,
who said that he was unaware of the existence of the confession and
that he had not provided any 302 forms because he did not have to
provide them until trial. On June 4, 2004, the government faxed
the 302 forms to Pizarro's counsel, and on June 8, the government
faxed the confession.
On June 9, 2004, Pizarro filed a motion arguing that the
government had violated Rule 16 of the Federal Rules of Criminal
Procedure6 and Brady v. Maryland, 373 U.S. 83 (1963), because it
had not provided Pizarro with either the confession or the FBI 302
forms before Pizarro pled guilty. Although Pizarro stated in the
motion that the government's actions called into question the
a two-level enhancement under U.S.S.G. § 2B1.1(b)(9) because the
offenses involved the use of sophisticated means; a two-level
enhancement under U.S.S.G. § 2B1.1(b)(10) because the offenses
involved the possession and use of device-making equipment; and a
two-level reduction under U.S.S.G. § 3E1.1(a) for acceptance of
responsibility.
6
Rule 16 details the government's obligations to provide certain
documents to the defendant.
-5-
voluntariness and intelligence of his guilty plea, he did not ask
that he be allowed to withdraw his plea; rather, he asked that the
district court adopt his interpretation of the Sentencing
Guidelines.
The government filed an opposition to Pizarro's motion on
June 16, 2004, stating that it never intended to use the 302 forms
at trial and therefore did not have to disclose them under Rule
16(a)(1)(A). The government also stated that the case agent did
not receive the confession until May 4, 2004, after he had
contacted state police to gather documents to prepare the case for
presentation. As soon as the case agent received the confession,
he forwarded it to Cribben, who used it in the PSR. The agent also
sent the document -- which was in the Spanish language -- to a
translator and forwarded a translated copy to the U.S. Attorney's
Office on June 7. The confession was then faxed to Pizarro's
counsel the following day. According to the government, therefore,
no one involved in the case either knew or could have known of the
confession's existence prior to May 4, 2004, meaning that the
confession could not have been given to Pizarro before he pled
guilty on March 1, 2004.
Pizarro was sentenced on July 1, 2004. At the sentencing
hearing, the district court denied Pizarro's motion regarding the
alleged discovery violations. The court accepted the PSR's
calculations, but gave Pizarro a three-level (instead of a two-
-6-
level) reduction for acceptance of responsibility, which resulted
in a Guidelines range of 63-78 months' imprisonment. The district
court sentenced Pizarro to 70 months' imprisonment as to Counts Two
and Three and 60 months' imprisonment as to Count One, to be served
concurrently with each other and the state sentence.7 However, in
its written judgment, the court stated that Pizarro's federal
prison term would run consecutively to his state sentence. Pizarro
now appeals, arguing that his plea was not knowing and intelligent
because the government failed to disclose the confession or the 302
forms; that he should be re-sentenced pursuant to United States v.
Booker, 543 U.S. 220 (2005); that his sentence included some
improperly applied enhancements; and that the written judgment
should be corrected so that Pizarro's federal prison term runs
concurrently with his state prison term, in accordance with the
district court's oral pronouncement of sentence.
II.
A. Rule 16 Violations and Withdrawal of Plea
We have stated that a "district court may allow
withdrawal [of a guilty plea] for 'a fair and just reason.'"
United States v. Padilla-Galarza, 351 F.3d 594, 597 (1st Cir. 2003)
(quoting Fed. R. Crim. P. 11(d)(2)(B)). Among the relevant factors
a court should consider are
7
The court also sentenced Pizarro to three years of supervised
release, a $1000 fine, and a $300 mandatory monetary assessment.
-7-
whether a plea was voluntary, intelligent,
knowing and complied with Rule 11; the force
of the reasons offered by the defendant;
whether there is a serious claim of actual
innocence; the timing of the motion; and any
countervailing prejudice to the government if
the defendant is allowed to withdraw his plea.
Id.
Pizarro appears to argue that his guilty plea was not
knowing and intelligent because of failures of the prosecutor to
disclose (allegedly in violation of Rule 16) both a confession and
various statements given by Pizarro. The supposed Rule 16
violations were raised in the district court but not as a reason
for withdrawing the plea. So far as we can tell, Pizarro has not
sought to withdraw his plea either in the district court or his
brief to this Court.
Further, Pizarro has never explained why the disclosure
of his prior confession or statements would have caused him not to
plead guilty. If anything, disclosure would seem rather to have
encouraged a guilty plea. Of course, if Pizarro were asserting
that the government had withheld exculpatory evidence, this would
be quite a different matter, but there is no such suggestion.
About the best we can make out from the brief is that
Pizarro is not interested in a withdrawal of plea at all but may be
pressing the following conjecture: that if the government had
turned over the confession and other statements at an earlier
stage, counsel might have been able to persuade his client to
-8-
accept an earlier and better plea offer from the government. But
this argument, obviously resting on considerable conjecture, is not
itself expressly developed in Pizarro's brief in this court or
supported with any precedent for such a use of Rule 16.
As it happens, it is uncontested that the federal agents
did not know about the confession until well after the plea. As
for the 302 forms, Pizarro makes no claim that at the time he pled
guilty he was ignorant of the fact that he had made statements to
the FBI agents during various interviews. There is an argument
that the forms should have been disclosed based on Rule 16 language
not cited by the government, but we have no reason to resolve the
matter. Pizarro has waived any argument that he should have been
permitted to withdraw his guilty plea by not seeking to have the
plea withdrawn before the district court and not making any
developed argument in favor of such relief on appeal.
B. Sentencing
1. Booker
In his initial brief, filed after the Supreme Court's
decision in United States v. Booker, 543 U.S. 220 (2005), and our
decision in United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.
2005), Pizarro argued that his Sixth Amendment rights were violated
because the district court sentenced him based on facts that were
not found by the jury. Pizarro never mentioned Booker (he
mentioned Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely
-9-
v. Washington, 542 U.S. 296 (2004)), never claimed that he
preserved a Booker error under Antonakopoulos, and never addressed
the likelihood that he would receive a more lenient sentence on
remand. Further, after filing his initial brief, Pizarro never
sought leave to file any supplemental materials to make the above
arguments. Instead, at oral argument, which occurred over a year
after Pizarro filed his initial appellate brief, Pizarro for the
first time argued that he had preserved Booker error.
We have consistently held that, except in extraordinary
circumstances, arguments not raised in a party's initial brief and
instead raised for the first time at oral argument are considered
waived. See, e.g., Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st
Cir. 1990). We will therefore not consider Pizarro's arguments
made for the first time at oral argument and will hold him to what
he argued in his brief.
In his brief, Pizarro argued that the district court
violated his Sixth Amendment rights by applying sentencing
enhancements based on facts not found by the jury. We have already
considered and rejected this argument on numerous occasions, and we
reject it again in this case. See Antonakopoulos, 399 F.3d at 75
("The [Booker] error is not that a judge (by a preponderance of the
evidence) determined facts under the Guidelines which increased a
sentence beyond that authorized by the jury verdict or an admission
by the defendant; the error is only that the judge did so in a
-10-
mandatory Guidelines system."). We therefore reject Pizarro's
request that he be re-sentenced under Booker.8
2. Amount of Loss Attributable to Pizarro
Pizarro also argues that the district court erred in
finding him responsible for over $400,000 in losses, which resulted
in a fourteen-level enhancement. "We review the district court's
interpretation and application of the Guidelines de novo and its
factual findings for clear error." United States v. Bailey, 405
F.3d 102, 113 (1st Cir. 2005) (internal quotation marks omitted).
Although it is not entirely clear from Pizarro's brief, it appears
that he is making two arguments regarding the imposition of the
enhancement: (1) the district court erred by automatically
attributing to him the amount of loss charged in Count Two of the
indictment simply because he pled guilty to that count,9 and (2)
that there was insufficient evidence in the record to show that he
8
In his brief, Pizarro mentions in passing that several of the
enhancements found by the district court were inapplicable to his
case. However, with two exceptions, discussed infra, these
arguments are made in such a perfunctory manner, buried within
Pizarro's discussion of the constitutionality of his sentence, that
we deem them waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) (stating that "issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived").
9
Pizarro actually argues that the district court found that he
was responsible for the totality of the scheme. This is incorrect.
The evidence at sentencing was that the actual loss caused by the
scheme was over $600,000, and the intended loss was over $1.5
million. The district court found that Pizarro was responsible for
over $400,000 in losses.
-11-
was responsible for over $400,000 in losses. We deal with each in
turn.
At sentencing, a defendant in a jointly undertaken
criminal activity is liable for the harm resulting from acts
directly attributable to him and for the harm resulting from the
reasonably foreseeable acts of others taken in furtherance of the
jointly undertaken criminal activity. See U.S.S.G. § 1B1.3(a)(1),
(3). However, the fact that a defendant has pled guilty to
involvement in a jointly undertaken criminal activity does not
automatically mean that the defendant is responsible for all the
losses caused by the jointly undertaken criminal activity. In
United States v. Colón-Solís, 354 F.3d 101, 102 (1st Cir. 2004),
the defendant entered a straight guilty plea to a conspiracy
involving more than five kilograms of cocaine.10 At sentencing, the
10
Colón-Solís involved a guilty plea to a conspiracy count,
whereas the instant case involves a guilty plea to a substantive
count (bank fraud). However, we do not think the analysis changes.
The reason has to do with the bank fraud statute, 18 U.S.C. § 1344,
and the relevant guideline, U.S.S.G. § 1B1.3.
18 U.S.C. § 1344 defines bank fraud as "a scheme or artifice."
Under U.S.S.G. § 1B1.3(a)(1), a defendant is liable for all acts
directly attributable to him and "in the case of a jointly
undertaken criminal activity (a criminal plan, scheme, endeavor, or
enterprise . . . whether or not charged as a conspiracy), all
reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)
(1)(B) (emphasis added). In accordance with the statute, Count Two
charged Pizarro and others with a scheme and artifice to defraud
certain financial institutions. Thus, Count Two qualifies as a
"jointly undertaken criminal activity" for purposes of U.S.S.G.
§ 1B1.3. No one has argued that $400,000 in losses resulted from
acts directly attributable to Pizarro. Therefore, in determining
-12-
district court found that the defendant was responsible for five or
more kilograms of cocaine, based solely on the defendant's plea.
Id. We found that "automatically attributing to the [defendant]
the full amount of drugs charged in the indictment and attributed
to the conspiracy as a whole" was error. Id. at 103. We therefore
vacated the sentence, stating that, in the drug conspiracy context,
"the court is required to make an individualized finding as to drug
amounts attributable to, or foreseeable by, that defendant." Id.
In subsequent cases, we have applied Colón-Solís to fraud cases.
See United States v. Rodríguez-González, 433 F.3d 165, 168 (1st
Cir. 2005). It is therefore clear that, in cases involving a
jointly undertaken criminal activity, a district court must make an
individualized determination regarding the amount of loss
attributable to, or reasonably foreseeable by, a defendant, and may
not rely solely on what was charged in the jointly undertaken
criminal activity count of an indictment, even if the defendant
entered a guilty plea.
We are initially troubled by this case because it appears
that the district court based its finding at least in part on the
fact that Pizarro pled guilty to Count Two, which alleged his
involvement in a scheme to defraud different financial institutions
of over $400,000. For example, the court stated that "I notice
the amount of loss attributable to Pizarro, the district court was
required to determine which acts taken by others in furtherance of
the scheme were reasonably foreseeable to Pizarro.
-13-
that the defendant pled guilty to Count 2 which alleged that the
loss was in excess of $400,000. So why are we wasting time? He
admitted it. That's it. It is the same as if he had gone to trial
and was found guilty as to that amount." However, elsewhere the
court indicated that it had to make a finding as to the amount
reasonably foreseeable to Pizarro based on the evidence as it
applied to Pizarro. For example, the court stated: "I told you
that I have to find what is the reasonable [sic] foreseeable amount
of the harm, and that's what we are doing here." The court also
stated that "[t]he fact is that the intended loss that it is
reasonably foreseeable, all the machines, all of this sophisticated
means, then that's what I have to decide, what was reasonably
foreseeable to him." (Emphasis added).11
Having reviewed the record, we believe that the district
court made its finding that Pizarro was responsible for $400,000 in
losses for two reasons: 1) the evidence presented by the
government, and 2) the fact that Pizarro had pled guilty to a
scheme involving over $400,000. The first reason is permissible
11
We note that the government stated several times that the issue
before the court was whether the losses caused by his others in the
scheme were reasonably foreseeable to Pizarro. While this is
obviously not conclusive on the reasoning of the district court, we
find it relevant. If, for example, the government had simply
argued that, because Pizarro pled guilty to Count Two, he was
responsible for $400,000 in losses, that would make it more
probable that the district court had simply attributed the amount
of loss in the indictment to Pizarro without an individualized
determination.
-14-
but the second is an error of law under our precedent. This
conclusion is borne out by the court's pronouncement of sentence:
As the offense involved a loss in excess of
$400,000, I do find that in this case, there
has been evidence that the loss exceeded
$400,000, and also I find that the defendant
pled guilty to the specific amount as charged
in Count 2, that is bank fraud in excess of
$400,000, so that's why the Court finds the
offense involved in excess of $400,000 . . . .
(Emphasis added). We therefore conclude that the district court's
decision to find Pizarro responsible for over $400,000 in losses
was based in part on an error of law.
However, that does not mean that we must automatically
remand for re-sentencing. In Colón-Solís, our decision to remand
was based on the fact that the district court's sole foundation for
finding the defendant responsible for greater than five kilograms
of cocaine was an error of law: that the drug amount charged in the
indictment and attributed to the conspiracy was automatically
attributable to the defendant. 354 F.3d at 102-03. We also noted
that the record was barren of any evidence as to the drug amounts
directly attributable to, or foreseeable by, the defendant. Id. at
103. The instant case presents a different situation, as the
district court's decision is not based solely on an error of law.
If there is enough evidence to support the alternative explanation
for the court's finding, the error would be harmless and there
would be no reason to remand to the district court when the result
will be the same. We therefore turn to whether there is enough
-15-
evidence to show that Pizarro was responsible for $400,000 in
losses. We conclude that there is.
As we noted above, a defendant in a jointly undertaken
criminal activity is liable for all losses directly attributable to
him and for all losses resulting from reasonably foreseeable acts
committed by others in furtherance of the jointly undertaken
criminal activity. In the instant case, it is undisputed that the
amount of loss directly attributable to Pizarro was around $21,000,
and that the amount of actual loss attributable to the entire
scheme was over $600,000. The issue, then, is whether Pizarro
could have reasonably foreseen the losses caused by others involved
in the scheme such that he should be held responsible for $400,000
in losses.
We have stated that, in making the above determination,
a court must first "determine what acts and omissions of others
were in furtherance of the defendant's jointly undertaken criminal
activity. This task requires the court to ascertain what activity
fell within the scope of the specific conduct and objectives
embraced by the defendant's agreement." United States v. LaCroix,
28 F.3d 223, 227 (1st Cir. 1994). The court must then "determine
to what extent others' acts and omissions . . . would have been
foreseeable by a reasonable person in defendant's shoes at the time
of his or her agreement." Id.
-16-
The acts of Pizarro's co-schemers were within the scope
of Pizarro's agreement. Pizarro argues that he only had an
agreement with the leader of the scheme, Angel Lacén-de Jesús
("Lacén"), to make purchases. However, the evidence belies this
argument. Under the Guidelines, "the court may consider any
explicit agreement or implicit agreement fairly inferred from the
conduct of the defendant and others." U.S.S.G. § 1B1.3, comment.
(n.2). Here, the evidence shows that Pizarro implicitly agreed to
be a part of the entire scheme. Pizarro was part of the scheme
from its inception and knew the leaders of the scheme well. He
grew up with one of the leaders, Lacén, and also served as his
bodyguard before and up to the point that the scheme began.
Pizarro admitted that he was paid $200 a day to guard Lacén "while
he would do his work, which was the counterfeiting of credit
cards." Thus, even before he joined, Pizarro knew what Lacén was
doing and planning. Pizarro also admitted that he knew the other
leader of the scheme, Eric Adorno-Rosario ("Adorno"), and knew that
Adorno and Lacén were partners in the counterfeit credit card
operation. He also admitted that, after serving as a bodyguard for
Lacén, he became a purchaser, "which is the person who goes
shopping with the cards that [Lacén] would make and program."
This is not a case where a defendant agrees to make a
one-time transaction for a scheme and gets caught. Here, Pizarro
stated that he was paid $100-$500 per day and that he worked a few
-17-
days a week. There was also evidence that others accompanied
Pizarro to the stores, so he knew that others were involved in the
scheme. Given all of this evidence, we find that the acts of
others in furtherance of the scheme were within the scope of an
implicit agreement that Pizarro made.
We now turn our attention to what losses were reasonably
foreseeable to Pizarro. Given the evidence presented at
sentencing, we conclude that the district court did not err in
finding that $400,000 was reasonably foreseeable to Pizarro. We
base this finding on Pizarro's knowledge of the inner details of
the scheme.
In LaCroix, we stated that:
foreseeability may be established . . . by a
defendant's knowledge of the nature and extent
of a conspiracy in which he is
involved . . . . It is both good law and good
logic that a defendant's awareness of the
inner workings of a conspiracy in which he is
participating is germane to, and often highly
probative of, accomplice attribution . . . .
Such knowledge frequently will suffice to
prove the defendant's ability to foresee the
acts of coconspirators.
28 F.3d at 229. The instant case presents an example of what we
discussed in LaCroix. As we noted above, Pizarro was with the
scheme from the beginning. He knew the leaders of the scheme and
the details of their roles in the scheme. He also knew others in
the scheme. Further, Pizarro knew details about how the leaders
made the counterfeit credit cards, was able to give details about
-18-
how the programs used in making the cards were accessed, and knew
where the leaders stored their computers. He knew how the machines
worked, and also knew that the leaders made not just counterfeit
credit cards, but also counterfeit checks and fake licenses. He
also knew that the leaders got their computers from a man named
Francisco, and stated that Francisco was able to obtain equipment
"to commit all types of fraud." Further, in his role as a
purchaser, Pizarro knew exactly why he was making the purchases.
He admitted that every few days he would change businesses where he
made purchases in order to avoid being identified by an
establishment's personnel. In sum, while his actual acts in
furtherance of the scheme only involved bodyguard duties and making
purchases, Pizarro was intimately acquainted with the details of
the scheme. We therefore hold that the district court correctly
found that the loss of $400,000 was reasonably foreseeable by
Pizarro.
Pizarro attempts to get around these difficulties by
making two arguments: (1) that his role was minor and that he only
participated in exchange for drugs, and (2) that he did not
participate in the scheme once he went to jail in July 2003. We
reject both of these arguments. First, it is settled that a
district court may correctly attribute "the entire loss to
appellant" even considering "the fact that he may have played only
a supporting role." LaCroix, 28 F.3d at 231. Here, the fact that
-19-
Pizarro only acted in a supporting role in no way means that the
losses stemming from the jointly undertaken criminal activity were
not reasonably foreseeable to him, especially given his knowledge
of the inner workings of the scheme. Further, although Pizarro was
allegedly given drugs in exchange for his services, there was also
evidence that he was paid between $100-$500 per day and worked two
to three days per week. In other words, he was not simply making
purchases in exchange for drugs.
Second, Pizarro has presented absolutely no evidence that
he ever withdrew from the scheme. We have stated that "in order to
withdraw from a conspiracy, a conspirator must act affirmatively
either to defeat or disavow the purposes of the conspiracy.
Typically, that requires either a full confession to authorities or
a communication by the accused to his co-conspirators that he has
abandoned the enterprise and its goals." United States v. Piper,
298 F.3d 47, 53 (1st Cir. 2002); see also United States v.
Robinson, 390 F.3d 853, 882 (6th Cir. 2004) (stating that, even
assuming that after his arrest the defendant was no longer an
active participant in the conspiracy, "he is nonetheless presumed
to be a continuing member, and is chargeable for the subsequent
acts of co-conspirators, so long [as] the conspiracy was ongoing
and [the defendant] did not establish his affirmative withdrawal
-20-
from the conspiracy").12 At sentencing, the prosecutor noted that
Pizarro -- although he initially gave a statement to the
Commonwealth agent who arrested him -- had not provided a "full
confession" and had been "obstinate with respect to his culpability
in this case." In conclusion, Pizarro has not provided evidence
that he gave a full confession or informed others involved in the
scheme that he was abandoning the scheme, and the fact that he was
in jail does not in and of itself mean that he withdrew from the
scheme. See, e.g., Robinson, 390 F.3d at 882 (stating that "a
defendant's arrest . . . does not qualify as an affirmative,
volitional act of withdrawal [from a conspiracy]"); United States
v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997) (stating that a
defendant's arrest, by itself, is insufficient to constitute
withdrawal from a conspiracy).
We find that the district court did not commit clear
error in its finding that there was enough evidence to find Pizarro
responsible for over $400,000 in losses. We base this finding
primarily on Pizarro's relationship with the leaders of the scheme
and his knowledge of various intimate details of the scheme. We
therefore affirm the district court's decision to apply a fourteen-
level enhancement to Pizarro's sentence.
12
As we noted above in footnote 10, Count Two was not a conspiracy
count. Nevertheless, since Count Two alleged Pizarro's involvement
in a scheme, we think the analysis regarding withdrawal from a
conspiracy applies with equal force to withdrawal from a scheme to
defraud financial institutions.
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3. Theft From The Person of Another Enhancement
Pizarro has also challenged a two-level enhancement of
his offense level pursuant to U.S.S.G. § 2B1.1(b)(3), which applies
"[i]f the offense involved a theft from the person of another," id.
This challenge is only dubiously preserved, as Pizarro devotes but
half a paragraph to it and performs none of the spadework necessary
to enable us to figure out precisely what is going on. But the
enhancement clearly affects Pizarro's sentence, and it is easy to
understand the thrust of what he is arguing once the guideline (and
its accompanying commentary) is consulted. In light of this, and
to guide the future application of this particular guideline, it is
useful to say something about the issue.
At first blush, it looks like § 2B1.1(b)(3) does not
apply here at all. Even if one could construe the text of the
guideline as ambiguous, the commentary to the guideline makes it
clear that the guideline is intended to apply to physical takings,
not to abstract forms of theft that take place far from the victim,
like credit card fraud. The application note defines "theft from
the person of another" as "theft, without the use of force, of
property that was being held by another person or was within arms'
reach" (emphasis added), and it provides as examples "pick-
pocketing and non-forcible purse-snatching, such as the theft of a
purse from a shopping cart." Id., comment. (n.1). The background
note explains that such theft "receives an enhanced sentence
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because of the increased risk of physical injury" that inheres in
such activity. Id., comment. (backg'd).
The case law on this particular guideline -- none of
which is cited by Pizarro or the government -- is consistent with
the view that the guideline targets physical and therefore
potentially violent (even if non-forcible) forms of theft. See
United States v. Rizzo, 349 F.3d 94, 98, 100 (2d Cir. 2003); United
States v. Londono, 285 F.3d 348, 350-51, 353-54 (5th Cir. 2002);
United States v. Jankowski, 194 F.3d 878, 885-86 (8th Cir. 1999).
To the extent Pizarro's PSR recommended this particular enhancement
based upon a contrary reading of § 2B1.1(b)(3), it was fairly
evidently mistaken.
But the district judge was more discerning in his reading
of the guideline. Looking at the transcript of the sentencing
hearing, it is apparent that the judge recognized immediately that
some kind of physical taking was required to trigger this
guideline, and said initially that he was "going to eliminate that"
enhancement. At that point, the AUSA intervened to explain that
victims' "[credit] cards were being taken" as part of the
conspiracy. Pizarro's lawyer did not object (nor had he objected
to the enhancement in his written objections to the PSR), and the
district court included the enhancement.
We have some basis for conjecturing that the AUSA,
doubtless innocently, was referring not to any physical theft of
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credit cards from the victims, but to the practice by which co-
conspirators, employed at retail establishments, would take credit
cards handed over voluntarily by customers (to pay for goods or
services) and surreptitiously swipe them through machines designed
to "steal" sufficient information from the cards to permit them to
be copied. The cards would then be returned to the owners; the
only theft was of the information stored on the credit cards'
magnetic stripes. This was not made clear to the judge at the
sentencing hearing.
If that is all that the AUSA meant when he said "[credit]
cards were being taken," then that form of theft falls just as much
outside the guideline as the form of credit card fraud practiced by
Pizarro himself in his role in the conspiracy (using forged credit
cards to purchase goods). Such theft involves no physical taking
and no appreciable risk of escalating to violence. We do not know
for certain what the AUSA was referring to at the sentencing
hearing, and therefore under the circumstances we do not know
whether the district court erred when it applied the enhancement.
We are therefore in no position to engage in plain error review
(which, of course, would be all Pizarro is entitled to, since he
failed to raise this objection below).
Although counsel for Pizarro may have an explanation for
having not pursued the objection below, this may well afford some
basis for an ineffective assistance of counsel claim, given a plain
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reading of the guideline commentary and the apparent lack of
evidence that any credit cards were physically stolen. But of
course this is a matter that must be raised by a § 2255 attack on
competence of counsel, see 28 U.S.C. § 2255, and a matter we are
not in a position to address, except to say that, although we take
no view on whether ineffective assistance occurred here, it is
promising enough that if a habeas petition is filed, the court
should consider appointing counsel for Pizarro.
C. Concurrent vs. Consecutive Sentences
As we have already noted, in its oral pronouncement of
Pizarro's sentence, the district court stated that Pizarro's
federal prison term would run concurrently with the sentence he was
serving for state convictions. Nevertheless, the written judgment
said that the sentences would run consecutively. The government
concedes that the case should be remanded so that the written
judgment can be modified to agree with what the district court
stated at the sentencing hearing. See United States v. Muñiz, 49
F.3d 36, 42 n.5 (1st Cir. 1995) ("Where, as in this case, the
district court's oral expression of its sentencing rationale varies
materially from its subsequent written expression of that
rationale, appellate courts have tended to honor the former at the
expense of the latter."). We will therefore remand the case so
that this portion of the sentence may be corrected.
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III.
For the foregoing reasons, we affirm the district court's
decision not to allow Pizarro to withdraw his plea. We vacate
Pizarro's sentence and remand to the district court so that the
written judgment may be corrected to agree with the oral sentence.
Affirmed in part, Vacated in part, and Remanded.
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